Canadian E-Discovery Case Law Digests - Common Law

This digest is maintained by the members of the Ontario eDiscovery Implementation Committee (EIC); it was originally created by the members of the eDiscovery sub-committee of the Task Force on the Discovery Process in Ontario and was a supplement to the eDiscovery Guidelines.

NEW Douez v. Facebook, Inc. 2014 BCSC 953 (CanLII) Date: 2014-05-30 Docket: S122316. Griffin J.
B.C. resident sought certification of a class proceeding against Facebook for the use of her name and likeness, without her knowledge or consent, in the company’s “Sponsored Stories”. Plaintiff claimed a breach of s. 3(2) of B.C.’s Privacy Act. In determining the identifiable class, a court considers whether the plaintiff has shown an identifiable class of “two or more persons”. Facebook relied on its records to show that the second proposed person did not appear in a Sponsored Story during the relevant time. The Court held that the Class Proceedings Act discourages discovery before the certification hearing takes place. In the present case, the source of information regarding who is in the class was predominantly in the hands of the defendant, but would be producible on discovery. The burden on the plaintiff should not be higher than that described in the Act; through the process of discovery and notice, membership in the class would be objectively determinable. Action certified.

NEW Fontaine v. Canada, 2014 ONSC 283 (CanLII) Date: 2014-01-14 Docket: 00-CV-129059. Perell J.
Parties involved in the independent assessment process (“IAP”) for former students of the Indian Residential Schools sought directions as to whether the records produced as part of the IAP should be destroyed, maintained or archived. Court ordered destruction of documents after a 15-year retention period during which survivors could choose to have redacted versions of their documents transferred to the National Research Centre for Truth and Reconciliation (“NCTR”). The IAP application form includes express privacy and confidentiality assurances for the personal information disclosed in the request for compensation. Court held that IAP documents are confidential and private documents both as a matter of contract and as matter of the common law and equity. The implied undertaking to protect a litigant in civil proceedings from having his or her discovery testimony used for collateral purposes applied to the IAP. IAP documents are neither court records nor government records; they are not subject to the open court principle that would provide public access.

NEWR. v. Fearon, 2013 ONCA 106 (CanLII) Date: 2013-02-20 Docket: C54387. Armstrong J.A.
Upon the appellant’s arrest, a police officer conducted a pat down search and located a cellphone. The officer examined the contents of the phone and found incriminating photos and messages. The cellphone did not have “mini-computer” capabilities and was not locked or password protected. Appellant sought to exclude the evidence that was obtained from his cellphone upon arrest. Appeal dismissed: the warrantless search was incidental to the arrest of the appellant and the police had a reasonable belief that the phone would contain relevant evidence. The information stored was not so connected to the dignity of the person that the Court should create an exception to common law doctrine granting police authority to search for evidence when truly incidental to arrest and carried out in a reasonable matter. This case was appealed to and dismissed by the SCC.

NEWR. v. Fearon, 2014 SCC 77 (CanLII) Date: 2014-12-11 Docket: 35298. Cromwell, J.
The SCC found that s. 8 of the Charter does notcategorically preclude any search of a cell phone seized incidental to a lawful arrest. The court disagreed with the ONCA and found that there should be no differentiation among cellular devices based on their particular capacities. The SCC held that for a cell phone search to be truly incidental to the arrest, the police need a reason based on a valid law enforcement purpose to conduct the search, and that reason must be objectively reasonable. The valid law enforcement purposes in this context are: a) protecting the police, the accused, or the public; b) preserving evidence; or c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest. The SCC modified the general framework for searches incidental to arrest in the case of cell phones: 1) the nature and extent of the search must be tailored to the purpose for which the search may lawfully be conducted; and 2) officers must make detailed notes of what they have examined on the cell phone. The SCC found that the search of the Fearon’s cell phone that lead to the incriminating photos and messages was truly incidental to arrest, the search was not reasonable but the evidence should not be excluded. The appeal was dismissed.

NEWR. v. Mann, 2014 BCCA 231 (CanLII) Date: 2014-06-18 Docket: CA040090
Upon the appellant’s two arrests, the police seized two blackberry devices. These devices were subsequently submitted for analysis and data extraction. The appellant sought to exclude the evidence that was obtained from the blackberry searches claiming a violation of s. 8 of the Charter. Appeal allowed: downloading the entire contents of a cell phone or smartphone, seized on the arrest of the accused, after some delay, without a search warrant, is not valid under s. 8 of the Charter as a reasonable warrantless search. The searches were carried out more than two years after the appellant’s arrests. The delay demonstrated that none of the purposes that justify a warrantless search incident to arrest were relevant.

NEWR. v. Spencer, 2014 SCC 43 (CanLII) Date: 2014-12-9. Docket: 34644. Cromwell J.
Police identified the Internet Protocol (IP) address of a computer that had been used to access and store child pornography. They obtained subscriber’s information from the internet service provider (ISP) . The subscriber sought to exclude the evidence found on his computer on the basis that obtaining his home address from the ISP amounted to an unreasonable search contrary to s. 8 of the Charter. The SCC held that the search was within the meaning of s. 8 but that the evidence should not be excluded under s. 24(2) of the Charter. If a person has a reasonable expectation of privacy in the totality of the circumstances then obtaining that information is a search. The search was warrantless and not lawful. However, the evidence was found to be reliable and the use of it would not bring the administration of justice into disrepute.

NEWSiemens Canada Ltd. v. Sapient Canada Inc., 2014 ONSC 2314 (CanLII). Date: 2014-04-23. Docket: CV-10-8845-00CL. Master D.E. Short.
Motion for an order requiring a discovery plan, a more comprehensive Affidavit of Documents, and timely production of relevant documents. The parties failed to comply with the mandatory requirement for a discovery plan before proceeding to make initial productions. There was a significant disparity between the number of documents produced by each side. The Court reviewed the typical process for e-discovery and held that the default rule for discovery should start with proportionality and a “recognition that not all conceivably-relevant facts are discoverable in every case”. The guiding principle in discovery should be proportionality and not relevance. The Court imposed the limiting phrase “subject to the principles of proportionality” in the discovery plan in order to acknowledge Rule 29.1.03(e).

NEWSilvercreek II Ltd. v. Royal Bank of Canada, 2014 ONSC 6751 (CanLII). Date: 2014-11-20. Docket: CV-11-9538-00CL. Master D.E. Short.
In the context of a complex, case-managed action on the Commercial list the plaintiff hedge fund conducted extensive examinations for discovery and endeavored to obtain answers to undertakings and address matters where refusal were given. The Court held that with respect to proportionality, the issues identified in the pleadings dictate the relevance of the proposed scope of e-discovery. The scope of e-discovery should be proportional to the complexity of issues and amount at stake. RBC had an obligation to provide a summary of the substance of evidence of any persons who might have knowledge of the matters at issue, including former employees and directors as well as third parties. The Court directed that Silvercreek identify no more than 25 individuals who they believe may have relevant information. RBC was to disclose its current knowledge as to the names and addresses of those individuals or officeholders. With respect to no more than 15 of such identified individuals, Silvercreek was entitled to specify up to three broad areas of evidentiary concern for each witness. RBC was required to provide only the information of which it was aware concerning the W5 Factors [who, what, where, when, why and how] with respect to the identified specific areas of interest.

NEW Warman v. National Post Company, 2015 ONSC 267 (CanLII) Date: 2015-01-26 Docket: 08-CV-00352197SR
Claim in defamation for various internet postings published by the Defendants. In March 2010, the Defendants brought a motion seeking the examination of the Plaintiff’s laptop by an independent expert. Various prior motions in the case focused on the appropriate degree of access to the Plaintiff’s computer hard drive by way of documentary discovery. A protocol was established with respect to the examination of the contents of the hard-drive. A report on the hard-drive contents and over 12,000 pages of heavily redacted appendices were produced and provided to the Defendants. The Defendants brought the present motion for an order permitting them to look behind the redactions for relevance and privilege. Master Short held that two separate experts reports concluded that there was no evidence to support the allegation against the Plaintiff. In light of the proportionality rule, Master Short emphasized the need for restraint on the extent of electronic discovery and urged that proportionality replace relevancy as the most important principle guiding discovery. He dismissed the motion and denied further production of the redacted appendices, concluding that any further production would be nothing more than a fishing expedition. Master Short admitted that his determination with regard to proportionality was, in part, informed by the fact that information from a personal computer hard-drive was at issue. Personal computers attract heightened privacy interests. The search of one’s personal computer is highly invasive.

NEWNova Chemicals et al. v. CEDA-Reactor Ltd. et al., 2014 ONSC 3995 (Canlii) Date:2014-07-09 Docket:3249-11. Leach J.
Plaintiff asserted that defendant’s initial production of 33 documents was deficient and sought an order directing implementation of a discovery plan that included among other things: witness statements, emails and an investigation report prepared by the defendants (the “Incident Bulletin”). The Court found that most of the information set forth in the Incident Bulletin and witness statements was factual information which the defendants would have been obliged to disclose to the plaintiffs during oral discovery examinations. However, even if there was a valid basis for asserting privilege, there was an express and/or implied waiver of privilege. The Court held that “there was absolutely nothing ‘surreptitious’, ‘inadvertent’ or ‘unintended’ about [the] actions in supplying [the plaintiffs] with copies of the Incident Bulletin and witness statements…”

NEWUniversity of Calgary v. JR, 2013 ABQB 652 (CanLII). Date: 2013-11-04 Docket: 1001 16269. C.M. Jones J.
A former employee alleged constructive dismissal and sought disclosure of communications related to her employment between the University’s in-house legal counsel and its external legal counsel. The University asserted solicitor-client privilege. The Privacy adjudicator issued a notice of production concerning the communications. The Court held that section 56(3) of Alberta’s Freedom of Information and Protection of Privacy Act authorized the Privacy Commissioner to compel a public body to produce records to verify solicitor-client privilege claims.

30.01 (1) (a) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194, interprets "document" to include: "a sound recording, videotape, film, photograph, chart, graph, map, plan, survey, book of account, and data and information in electronic form". This interpretation builds on the definition of "document" in s. 1.03 (1) to include "data and information in electronic form"; "electronic" includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means, and "electronically" has a corresponding meaning; ("électronique", "par voie électronique").

NEWConseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2012 QCCS 515 Date: 2012-02-14 Brian Riordan J.S.C. A really large and messy case that reinforces the idea that reasonable (rather than perfect) discovery is what's expected. "[28] The Court understands that, to date, tens of millions of pages of documents – and that is not a typographical error – have been exchanged among the parties in these files. No human, or even team of humans, could ever read all of them, so it was ordered that all document communications in these files be done electronically, to allow for computer searches to identify the key pages. Some will inevitably be missed. It cannot be helped. This is all that is reasonably possible."

Webb v. Jones, 2011 ONSC 2479 (CanLII) Date: 2011-04-19 Docket: CV-04-0431-00. Regional Senior Justice H.M. Pierce. In a personal injury case arising from a pedestrian-vehicle accident, the defendant asks for the plaintiff's previous medical records relating to post-accident complaints. The court cites Black's Law Dictionary at para 4 to define relevance: "A document is relevant if it has probative value; if it is logically connected to and tending to prove or disprove a matter in issue. In other words, it must have persuasive value concerning an alleged fact. See: Black’s Law Dictionary, Seventh ed. (1999 West Group, St. Paul, MN, U.S.A.)."

Animal Welfare International Inc. v. W3 International Media Ltd., 2011 BCSC 299 (CanLII) Date: 2011-03-11 Docket: S093691. Armstrong J. An offshore supplier of animal supplies sues the Canadian-based website provider responsible for the internet-based marketing and sales for failure to account for profits and continuing to use the plaintiff's customer list after termination of the profit-sharing agreement. Plaintiff seeks reports of sales, costs and profits from the electronic sources in the form of Pharmacy Administrator Reports. Defendant claims it produces "tables" but not reports, and only at the request of counsel. The court concludes that "report" is the same thing as "tables" at para 25, and orders "a copy of the electronic data storage medium containing the information in the possession or control of the defendant and used to generate the Report or capable of generating similar reports".

AstraZeneca Canada Inc. v. Apotex Inc., 2008 FC 1301 (CanLII) An appeal from a Prothonotary's decision disposing of requests for answers put to party representatives during discovery. The court said, "it is clear that the Rule is intended to bring to bear a more issue-oriented test of relevance and avoid the "train of inquiry" cases that have served to expand discovery with little or no effect on matters that are ultimately presented to the trial judge." (para 11)

eBay Canada Ltd. v. Canada (National Revenue), 2008 FCA 348 (CanLII) Date: 2008-11-07 Docket: A-105-08 Evans J.A. "This is because, with the click of a mouse, the appellants make the information appear on the screens on their desks in Toronto and Vancouver, or anywhere else in Canada. It is as easily accessible as documents in their filing cabinets in their Canadian offices. Hence, it makes no sense in my view to insist that information stored on servers outside Canada is as a matter of law located outside Canada for the purpose of section 231.6 because it has not been downloaded. Who, after all, goes to the site of servers in order to read the information stored on them?" (para 48)

eBay Canada Limited v. Canada (National Revenue), 2008 FCA 141 (CanLII) Date: 2008-04-17 Docket: A-105-08 Sharlow J.A. Motion by eBay to stay execution of a judgement authorizing Revenue Canada to require eBay to to provide information to the Minister about PowerSellers whose eBay registration indicates a Canadian address. The required information includes the names of the PowerSellers, their contact information, and the amount of their gross annual eBay sales. Dismissed.

Apotex inc. v. Bristol-Myers Squibb, 2007 FCA 379 (CanLII) Date: 2007-11-29 Docket: A-25-07 ; A-22-07. Sharlow J.A. 30] In determining the propriety of a particular question posed in the examination for discovery of Dr. Ryan, the test is whether it is reasonable to conclude that the answer to that question might lead Apotex to a train of enquiry that may either advance its case or damage the case of BMS: Apotex v. Canada, 2005 FCA 217 (CanLII), 2005 FCA 217. For example, Apotex is entitled to ask any question that could elicit an admission by BMS as to a relevant fact, or that could elicit information about the existence of documents that have not been disclosed but that meet the test of relevance for the purposes of pre-trial discovery, as set out in the Further and Better Order, subject always to the overriding discretion of a prothonotary or judge to control abuses of the discovery process.

eBay Canada Limited v. Canada (National Revenue), 2007 FC 930 (CanLII) Date: 2007-09-18 Docket: T-2124-06. Hughes J. An application to review an order to divulge account, address and sales volume information about Canadian eBay sellers who qualified for the PowerSeller program by virtue of the volume of their sales. The information on the PowerSellers is stored in servers in the U.S., but can be accessed by eBay Canada. "[16] The issue before me is, therefore, whether section 231.2 of the Income Tax Act permits an Order that will require a Canadian resident to provide information to which it has access in Canada but is stored in data facilities owned by another party located outside Canada." "[23] The issue as to the reach of section 231.2 when information, though stored electronically outside Canada, is available to and used by those in Canada, must be approached from the point of view of the realities of today's world. Such information cannot truly be said to "reside" only in one place or be "owned" by only one person. The reality is that the information is readily and instantaneously available to those within the group of eBay entities in a variety of places. It is irrelevant where the electronically-stored information is located or who as among those entities, if any, by agreement or otherwise asserts "ownership" of the information. It is "both here and there" to use the words of Justice Binnie in Society of Composers, Authors and Music Publishers of Canada v. Canadian Ass'n of Internet Providers, [2004] 2 S.C.R. 427 at paragraph 59." See also the Courts further reasons in Ebay Canada Limited v. Canada (National Revenue), 2008 FC 180 (CanLII), dated 2008-2-13.

Brian Dressler Medicine Professional Corporation, order HO-005 of the Information and Privacy Commissioner/Ontario, 2007-06-07. Ann Cavoukian, PhD. A video image of a woman using a washroom in a methadone clinic was intercepted by a wireless device located in a car near the Clinic. On page 7 of the order, the Commissioner writes, "In the present case, at the time that the Clinic broadcast the video image, a "record" was created in the sense of an account of something that occurred ..., specifically, a woman using the washroom to provide a urine sample. That record was created electronically in the form of encoded data. The wireless transmission of this data is analogous to a conversation, in which sound is "encoded" with information through the use of language." She subsequently goes on to write, "Further, I find that when the CCTV camera captured the image of the woman, the Clinic created information in "recorded form" under section 4(1) of the (Personal Health Information Protection) Act."

Sourian v. Sporting Exchange Ltd., 2005 CanLII 4938 (ON S.C.) 2005-03-02 Docket: 04-CV-268681CM 3. Master Calum U.C. MacLeod. Production of information from an electronic database. An electronic database falls within the definition of "document" in our (Ontario) rules. The challenge in dealing with a database, however, is that a typical database would contain a great deal of information that is not relevant to the litigation. Unless the entire database is to be produced electronically together with any necessary software to allow the other party to examine its contents, what is produced is not the database but a subset of the data organized in readable form. This is accomplished by querying the database and asking the report writing software to generate a list of all data in certain fields having particular characteristics. Unlike other documents, unless such a report is generated in the usual course of business, the new document, the requested report (whether on paper or on CD ROM) would have to be created or generated. Ordering a report to be custom written and then generated is somewhat different than ordering production of an existing document. I have no doubt that the court may make such an order because it is the only way to extract the subset of relevant information from the database in useable form. On the other hand such an order is significantly more intrusive than ordinary document production. A party must produce relevant documents but it is not normally required to create documents. Accordingly such an order is discretionary and the court should have regard for how onerous the request may when balanced against its supposed relevance and probative value. (Italics P.D.)

Requests for further production

Velsoft Training Materials Inc. v. Global Courseware Inc., 2012 NSSC 295 Date: 2012-08-02 Wood J. The defendants brought a motion to compel further disclosure of electronic information by the plaintiffs. The defendants did not provide evidence to show that there were any specific electronic records or categories of records which were relevant and not disclosed by the plaintiffs. However, court did find inadequacies in the affidavits and disclosure provided by the plaintiffs, and ordered that they provide additional information in Schedule A in order to comply with the requirements of CPR 16.09(3)(d). The court also ordered that they give further details concerning destruction of electronic information in accordance with CPR 16.03(2)(b) and 16.09(3)(h), and provide explanations for the redactions which had been made. Case is first one referring to The Sedona Canada Commentary on Proportionality in Electronic Disclosure & Discovery.

Markson v. MBNA Canada Bank, 2011 ONSC 871 (CanLII) Date: 2011-02-04 Docket: 03-CV-254970 CP C. Horkins J. In this certified class proceeding, the plaintiff moved for an order requiring MBNA to conduct a more thorough search of the documents in its possession, power and control, and an order for a further and better affidavit of documents including disclosure of certain categories of documents. The plaintiff defined in detail what it found missing (see para 22 onwards). The parties met and agreed on search terms and key custodians (para 37 onwards). While commending the defendant's significant efforts to identify and produce relevant documents, the court disagreed that it was disproportionate to order more production since the plaintiff had demonstrated that the requested documents were relevant to one or more of the common issues and had identified missing documents.

Canreal Management Corporation v. Mercedes-Benz Canada Inc., 2010 BCSC 642 (CanLII) Date: 2010-05-05 Docket: S093481 N. Smith J. Although the defendant had disclosed a large volume of documents, the plaintiff alleges that critical documents are missing from the production based on information from a former employee of the defendant during examinations for discovery. At para 20, the court observed that the plaintiff had specified categories of documents that he considers to be relevant. The plaintiff had moved to strike the defendant's appearance or statement of defence, but the court concludes at para 35 this would be too draconian a remedy and gives leave to the plaintiff to cross-examine the defendant on his document production.

Canadian National Railway Company v. Western Grain Cleaning & Processing Ltd., 2010 SKQB 59 (CanLII) Date: 2010-02-12 Docket: Q.B.G. No. 1455 of 2008 Currie J. Among other components in the decision, the court deals with the defendant's request for better document disclosure and production. At para 32, the court summarizes the complaint. " Western Grain says that CNR's document disclosure to date largely relates only to CNR's claim, ignoring the issues raised in Western Grain's statement of defence and counterclaim. CNR responds that the allegations in the defence and counterclaim are set out too broadly to permit CNR to discern which of CNR's documents are relevant for discovery." "The list of documents that Western Grain has asked CNR to disclose does not assist in obtaining an understanding of the kinds of documents that actually are relevant to issues pleaded by Western Grain."

University of Alberta v. Alberta (Information and Privacy Commissioner), 2010 ABQB 89 (CanLII) Date: 2010-01-14 Docket: 0903 09444 Manderscheid J. Judicial review of the decision of the Adjudicator at the office of the Information and Privacy Commissioner. The applicant asserts that the Adjudicator unreasonably expanded the search (including backup tapes as well as more terms), expanded the duty to assist, and did not take privacy legislation into account. At para 24 the court analyses the issue of searching backup tapes, agreeing with the applicant that ordering such a search breaches procedural fairness. At para 32, the court agrees with the Adjudicator that a reasonable search would extend to others in the Department who might have sent complaints about the proposed course changes, especially in light of the lack of standards for e-mail retention and deletion..

Rossi v. Vaughan (City), 2010 ONSC 214 (CanLII) Date: 2010-01-19 Docket: 07-CV-326105PD2 Master Sproat. In a wrongful dismissal case involving allegations of political conspiracy, the plaintiff moved for an order requiring the city to search its servers and computer systems for correspondence relating to matters at issue, to and from a former mayor. In addition, the plaintiff moved for a forensic examination of the mayor's former work computer and his home computer. The court dismissed the motion in its entirety. Regarding the search of servers, the plaintiff disputes the parameters of the original search, but "at no time questioned the City as to its efforts to search or requested particulars as to the parameters of the search that was undertaken. More importantly, there was no evidence to suggest that the City had failed to disclose relevant documents." (para 4) Regarding the business computer and the personal computer, the court held that the plaintiff was not entitled to the forensic search since first, "there is no evidence that there are relevant documents or data in electronic form contained on either of the computers." " Second, there is no evidence of non-disclosure or of any omission from production and disclosure obligations". "Third, there is no basis to depart from the general rule that a litigant has the initial or primary onus or obligation of disclosing relevant documents in the first instance." "Fourth, the investigation requested by the plaintiff is costly, in my experience. There is nothing in the record that would support such expense. The new rules require the court to consider proportionality and there is no evidence to suggest that the benefits of such an investigation would warrant the costs." "Fifth, it would appear, in any event, that (the former mayor) did complete a computer search and that this search did not disclose any further relevant documents."

Honour v. Canada (Attorney General), 2008 BCCA 346 (CanLII) Date: 2008-09-09 Docket: CA036224 ; CA036223. Bauman J. The pilot's widow seeks leave to appeal the order in Chadwick v. Canada to produce her husband's computer for forensic analysis. Court declines to grant leave, since the scope covers a limited time period, will be paid for by the defendant, contemplates a search protocol agreed to by the parties (or determined by the court in the absence of agreement), and the search results are to be reported to plaintiff's counsel. Although the court doesn't emphasize it, the order also required review of the documents by an independent counsel to avoid the possibility of disclosure of privileged or irrelevant information.

Mathieson v. Scotia Capital Inc., 2008 CanLII 45409 (ON S.C.), Date: 2008-09-09 Docket: 07-CV-335295PD2. Master Sproat. In a wrongful dismissal case, plaintiff moved for production of all 25,000 emails retrieved in a search on the plaintiff's name among the email stores of 8 principals and their assistants covering the one year period prior to the termination. Of these 25,000, only 27 emails were produced, and of these very few were in fact new documents. Plaintiff argues that more than the 27 emails produced were expected, and the plaintiff alleges bad faith. The Master concluded there was no evidence that documents were missing and no apparent gaps that would justify a motion to compel, and no reason to believe "that the documents sought have any relevance to the issues in the action or have any probative value". Motion was dismissed.

Shields Fuels Inc. v. More Marine Ltd., 2008 FC 947 (CanLII) Date: 2008-08-13 Prothonotary Roger R. Lafrenière. Plaintiff seeks damages for a breach of contract and a permanent injunction preventing the defendants from carrying fuel allegedly owned by the plaintiff on the defendant's barge, which was arrested shortly after the suit was launched. Defendant filed a statement of defence denying they entered into a contract and a claim for a lien on the fuel on the barge, as well as damages for wrongful and continued arrest of the defendant barge. After serving their affidavit of documents, defendant amended the statement of defence and counterclaim to claim that plaintiff caused the defendant barge to be arrested in order to take advantage of the defendants "when the Plaintiff knew or ought to have known that the Corporate Defendants did not have the means to provide a bond". Plaintiff subsequently requested production of financial records so that the issue of financial means could be explored on discovery. The defendant produced an unedited balance sheet, but plaintiff considers the production insufficient to allow them to examine the defendant on capacity to provide a bond. This motion requests an order to produce Supplementary Affidavits of Documents listing the financial records for 2007 and 2008, including the monthly income statements and balance sheets. In opposing, the defendants state they have produced all relevant financial records in their possession. Defendant explains that their A/R and A/P records update on payments made and then "fall away" (para 8). Defendant would have the engage on contract the former employee who set up the financial system at a cost of $500-$750. Defendant declined plaintiff's offer to send one a technician at its own expense to retrieve the information from the database. Defendants argue they should not be required to expend time and resources to create tailor-made documents. Rules 222 to 226 contemplate the production of documents "in the possession, power or control" of a party. The most relevant electronic data and information in the "control" of a party will be that which can be accessed by the party's computer users in the ordinary course of business, otherwise known as the active data. The Court held that "The rules should not be interpreted, however, so narrowly as to prevent a party from obtaining other relevant information, such as archival data that is still readily accessible and not obsolete. In exercising its discretion whether to compel production, the Court should have regard to how onerous the request for a generated record may be when balanced against its relevance and probative value." (para 13) The Court granted the order, concluding "The information requested by (the plaintiff) consists of basic archival accounting records that would be available to a company in the usual course of business."

Chadwick v. Canada (Attorney General), 2008 BCSC 851 (CanLII) Date: 2008-06-20 Docket: S065491 Myers J. In an action arising out of a helicopter crash, the court ordered the widow of the pilot to produce the hard disk of her husband's computer for forensic analysis. An email from the deceased produced by Transportation Safety Board in response to an access to information request was not produced by the plaintiff; the email listed problems the pilot had had with the aircraft. Upon disclosure of the email, defence counsel asked plaintiff to review the hard drive for relevant documents, including those that would have been deleted. Plaintiff's counsel engaged a forensic analyst who retrieved the subject email with attachment as well as a partial list of a helicopter log. Counsel did not provide the methodology used in reconstructing the data on the drive. The parties dispute the terms used to search for relevant information on the disk. Attorney General moves for the disk to be analysed an experts retained by the defendants, and independent counsel to review the documents, at the expense of the defendants. The purpose of the independent counsel was to ensure that all relevant documents would be produced and to protect privileged or irrelevant information. Analysis involves the discussion of the hard disk as a filing cabinet, and why, in this case, it is appropriate to have the hard disk analyzed a second time by experts retained by the defendants, provided privileged, private and non-relevant information is protected.

Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11 Docket: 0701-0179-AC. Reasons for judgment reserved by Carole Conrad J.A. Appeal from an order by the case management judge to produce the imaged hard drives in specie and of drives containing the "hybrid" files (those patients whose care was partially funded by the CHR). Reflecting on the decision in Spar Aerospace Limited v. Aerowerks Engineering Inc. , the Court stated: "While I agree with Madam Justice Veit's decision, I would add a caveat. Even in circumstances where it is clear that a litigant is thwarting the litigation process, and the court deems it appropriate to order production of a hard drive, measures should be taken to protect disclosure of irrelevant and immaterial information which the producing party objects to produce. Although litigation confidentiality exists, many times that will not be sufficient to protect personal, confidential and private material. A judge should always hear representations as to how information that is neither material nor relevant can be protected from exposure, and frame any production order in the least intrusive manner." (para 41)

Passerello v. Minaco, 2007 CanLII 39891 (ON S.C.) Date: 2007-02-08 Docket: 06-CV-299791PD1 Master M.J. Sproat. Plaintiff moves to compel answers in a dispute about a share purchase transaction. Defendant had produced very few emails, which lead to the conclusion that there had been an inadequate search of electronic sources of information. "In my view, a proper search of the electronic documents must be done, including a search of the hard drive and back up tapes, and all relevant documents produced. In addition, counsel for the defendants must advise as to the nature and the scope of the search efforts to the plaintiffs."

Doucet v. Spielo Manufacturing Inc., 2007 NBQB 37 (CanLII) Date: 2008-01-29 Docket: M/C/1157/03 Lucie A. LaVigne J. In January 2008 the court found that there was no contempt, acknowledging that the defendants had made some effort in November and December 2007 to comply, and that the burden of discovering the electronic information was considerable. Dan Michaluk gives a summary in his report.

Commissioner of Competition v. Labatt Brewing Company Limited, 2008 FC 59 (CanLII) Date: 2008-01-28 Docket: T-325-07 Anne L. Mactavish J. Decision to set aside a production order granted to the Commissioner of Competition on an ex parte basis. Among the criteria included excessive burden on respondents and requests for information that has already been produced or which is not relevant to the inquiry. Respondents also asserted that the the information provided by the Commissioner in support of its application was misleading, inaccurate or incomplete, such that the order should never have been made. See Dan Michaluk's blog for more information.

Ritchie v. 830234 Ontario Inc. (Richelieu Hardware Canada Ltd.), 2008 CanLII 4787 (ON S.C.) Date: 2008-01-18 Docket: CV-07-0213 D.C. Shaw J.In this suit for wrongful dismissal, the plaintiff moves for an order "that the defendant preserve, retrieve and produce all relevant electronic documents in its possession or control. The plaintiff seeks to have a third party information technology company image and store the contents of all computers, mobile handheld devices and other electronic devices of every kind used by the defendant. The plaintiff then wants the defendant to review the imaged file index to determine if privilege is claimed and to produce in electronic form all relevant documents for which privilege is not claimed." The defendant has produced the attachment to one email as the one relevant document. Defendant did not produce the container email, claiming the email had no relevant information and has long since been purged. Plaintiff has produced "no evidence on this motion that there is any other relevant data and information in electronic form", but speculates about the existence of other e-mails exchanged among his immediate supervisor, the regional manager and the general manager of the company. Plaintiff asks the court to assume there were other (relevant) emails. Citing Master Dash in White v. Winfair2005 CanLII 13037 (ON S.C.), the Court declined to grant the order based on the lack of convincing evidence of the existence and relevance of the documents sought. The Court goes on to state that the plaintiff may renew its motion if evidence of other relevant documents arises during examinations for discovery. The Court did, however, order the defendant to "use its best efforts to retrieve this (container) e-mail and produce it and the attachment, in electronic form to the plaintiff."

Shell Canada Limited v. Superior Plus Inc., 2007 ABQB 739 (CanLII) Date: 2007-12-03 Docket: 0301 09751 Dennis G. Hart, J.C.Q.B.A. This action is a suit for damages from the evacuation of a mine site resulting from a fire caused by a leak from the defendant's propane delivery truck. The plaintiffs had also sued their insurance company for damages related to the fire and cost overruns during construction of the mine. The statement of defence had been amended with new allegations that the plaintiffs had failed to ensure a functioning and commissioned fire protection system. In this motion, the defendant alleges that the plaintiff is withholding relevant and material records, that the search terms were inadequate, and seeks further production. The insurance collection of 50,000 documents included 15,000 related to the fire. These 15,000 documents were reviewed by hand for relevance to the plaintiff's suit against the defendant. This review was supplemented with a keyword search. The remaining 35,000 documents in the insurance collection were searched for relevant documents using less intensive search criteria. The Court concluded that the approach taken by the plaintiffs to review the insurance documents complied with Principle 10 of the Ontario eDiscovery Guidelines, was reasonable, and that the additional production sought by the defendant will not yield relevant and material records.(para 41) The Court observed that the adequacy of the search terms would not be an "issue at all if counsel had collaborated on the terms as suggested in the Ontario Guidelines." (para 36) Dan Michaluk's blog has an excellent summary of the case.

Spielo Manufacturing and Manship v. Doucet and Dauphinee, 2007 NBCA 85 (CanLII) Date: 2007-11-15 Docket: 99/07/CA M.E.L. Larlee J.A, J.T. Robertson J.A, J.C. Marc Richard J.A. Cites Ontario eDiscovery Guidelines and Sedona Canada Principles in draft form, with link to Sedona Conference website. Appeal from decision in June, 2007. Court points out that if there were to have been an appeal, it should have been against the original order of Savoie J. Dan Michaluk's summary is here.

Hummingbird v. Mustafa, 2007 CanLII 39610 (ON S.C.) Date: 2007-09-19 Docket: 06-CV-304092PD1 Master Sproat "...the defendants seek a disk image of Mustafa's hard drives which Hummingbird used to produce documents in their affidavit of documents and supplementary affidavit of documents and to advise of the anticipated cost of this request. Essentially, the defendants wish to have a mirror copy of the hard drive of the computer used by Mustafa while employed by Hummingbird". In his conclusions, relies on Reichman to include the hard disk in the definition of a document, and interprets the hard disk as permitting the inspection of the "original" of the production. Goes on further to state that provision of the mirror-image is the most cost-effective approach, in line with Rule 1.04 (just, most expeditious and least expensive determination of the proceedings). (Since the disk is indeed the one used by the defendant while at Hummingbird, there would be no concerns about protection of privacy. PD)

Spar Aerospace Limited v. Aerowerks Engineering Inc., 2007 ABQB 543 (CanLII) 2007-09-04 Docket: 0403 24218 J.B. Veit J. The court granted a request by the plaintiff for a declaration that the defendants have failed to provide an adequate affidavit of records within the time prescribed by court order and for a collateral declaration that ...the plaintiff was entitled ... to obtain the defendants' imaged hard drives and all records seized during the execution of an Anton Piller order. No protection provided for personal information that may have been co-mingled with the business information on the imaged hard drives. The defendant's appeal from the order was dismissed.

Doucet v. Spielo Manufacturing Inc., 2007 NBQB 245 (CanLII)Date: 2007-06-29 Docket: M/C/1157/03 Lucie A. LaVigne J. Cost shifting issues. Retrieval of information from backup tapes. Failure to comply with a production order. Third motion dealing with discovery. Plaintiffs seeking declaration that defendants have not complied with the order, are in contempt and have abused the process of the court. Re computer access, defendants contend they no longer have a computer system and that documents are only available on backup tapes, even though plaintiffs had advised them from the beginning that they would be looking for electronic information. There are 427 backup tapes.

Agustawestland International Ltd. v. Canada (Minister of Public Works and Government Services). (unreported) Federal Court. Date: 2007-6-19 Docket: T-1605-04. Madam Prothonotary Mireille Tabib. "The Defendants' obligation to produce a list of documents is confined to listing relevant documents in their Affidavits of Documents. They are neither required to list the entire contents of, nor produce a listing of, their entire electronic filing cabinet. I am not satisfied that the index to the electronic filing cabinet is, of itself, a document which is relevant to the determination of the issues raised in the pleadings. Its relevance, as a document, is confined to assisting in resolving discovery issues. Production of documents is required only in respect of documents that are relevant to the substantive issues in the pleadings."

Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770 (CanLII) Date: 2007-05-31 Docket: L051505. Shabbits J. Requiring an affidavit to verify that production is complete. "In Foundation Co. of Canada Ltd. v. Burnaby (District), [1978] B.C.J. No. 557 (B.C.S.C.), Legg J. discussed the purpose of the rule that a party may be required to verify by affidavit that the documents which it has listed are all the documents that are or have been in their possession. He explains, at para. 7, that the purpose of Rule 26(3) is to enable a party to require that every reasonable effort has been made by its opponents to reveal the existence of all relevant documents that are or have been in their possession. Legg J. states that when some documents that are significant to the defence or claim of a party have for whatever reason been omitted, that in the absence of any adequate explanation or reason for such omission, an order directing the delinquent party to deliver an affidavit verifying the list of discovered documents ought to be made." (para 55) "In my opinion, the defendants have adopted a narrow view as to what their lists of documents ought to include. I conclude that the defendants should be put on their oaths so that their consciences are appropriately engaged in the decision as to what documents are material to the proceedings, and whether they have yet been produced." (para 59)

Stergiou v. Stergiou, 2007 CanLII 17642 (ON S.C.) 2007-5-18 Backhouse J. The wife sought temporary orders for the production of the hard drive to her husband's personal computer for imaging. "The evidence and documentation that has been produced support that the husband has not been candid about his home computer. The wife's proposal that a lawyer be retained to act as an independent counsel to parse any matters of solicitor and client privilege is a reasonable one. The hard drive of the husband's home computer shall be produced for imaging and delivered to Stacie Glazman to parse any matters of solicitor and client privilege. The remaining contents shall then be delivered to the wife's solicitor." (para 41)

Stanfield v. The Queen, 2007 TCC 480 (CanLII) Date: 2007-05-10 Docket: 2004-1415(IT)G. The Honourable Gerald J. Rip, Associate Chief Justice. Respondents motion to compel (Appendix 2) includes copies of all documents printed on that computer and all data on the hard drive as it respects the joint venture (Q115) and the hard drive and copies of any documents .... printed out on that computer respecting the joint venture trades (Q117). In Q118, the respondent states: "The witness' evidence is that he didn't have any information on that computer relating to these trades. The Respondent claims that this is contradictory to what he reported therefore it is relevant to the issue and the Crown is seeking to explore this at discovery."

Kaymar rehabilitation inc. v. Ottawa-Carleton Community Care Access Centre, 2007 CanLII 9757 (ON S.C.) Date: 2007-03-21 Docket: 05-CV-030917 Master Beaudoin. On applications for orders compelling better production from both plaintiffs and defendants and answers to interrogatories from plaintiffs, the court ordered "that the parties are to confer and attempt to agree with respect to which person's e-mails at what location and what key words are to be used for search of records". The court also ruled on what need not be produced: "Just because a document produced refers to words & "Guideline" or "RFP" this doesn't mean that this other document relates to matters to this litigation. If the plaintiff has a different or expanded theory of its case it is to provide an amended statement of claim or further particulars prior to the next round of discoveries." (para 4)

NAC Constructors Ltd. v. Alberta Capital Region Wastewater Commission, 2006 ABCA 246 (CanLII), 2006-08-25, MacFadyen O'Leary Berger JJA. In a dispute about the award of a contract after a request for proposals, the Defendant appealed an order to compel responses to three questions related to the advice and opinions provided by a consultant company (Earth Tech) it had retained to help with the evaluation of bids. The court agreed with the appellant, stating "The disputed evidence may comprise opinions and advice that relates to compliance of the Maple and NAC bids, the fundamental and determinative issues raised by the pleadings, and that evidence may be relevant to those issues in a broad sense. But it is not material to them within the Rules fixing the scope of examination for discovery. Resolution of the issues of compliance of the tenders does not depend in any way on the opinions and advice communicated by Earth Tech to the Commission. The disputed evidence cannot reasonably be expected to significantly assist in proving or disproving the issues of compliance. (para 17)

Doucet v. Spielo Manufacturing Inc., 2006 NBQB 249 (CanLII) Date: 2006-07-14 Docket: MC115703. R. Savoie J. Employment case involving wrongful dismissal, unlawful termination, unjust enrichment and breach of fiduciary duty. The court order that the Defendants provide access to the computer system of the Defendant Spielo Manufacturing Incorporated ("Spielo"), including the archives of such system, by the Plaintiffs or their agent. Detailed order attached to decision does not appear to protect privacy or confidentiality.

Desgagne v. Yuen et al, 2006 BCSC 955 (CanLII) Date: 2006-06-21 Docket: M040544. Myers J. In a motion the Defendants seek production of the the hard drive from the plaintiff's home computer for analysis by an expert, as well as the plaintiff's Palm Pilot and video game unit. "It is true that documents contained in electronic form present new challenges. That does not mean, however, that the Court should lose sight of the underlying principles regarding document production. For the purposes of this part of the motion (as opposed to the request for the metadata, which I discuss below) the documents stand in no different light than paper documents, and the hard drive is the digital equivalent to a filing cabinet or document repository. A request to be able to search a party's filing cabinets in the hopes that there might be found a document in which an admission against interest is made would clearly not be allowed. Its digital equivalent should also not be allowed." (para 20) Value of the production outweighed by competing interests, which included not only the time and expense of production but also confidentiality. (para 38 and following analysis for each type of evidence sought).

Roeske v. Grady, 2006 BCSC 1975 (CanLII) Date: 2006-01-06 Docket: M022824. H.A. Slade J. Defendant applied for an order that the plaintiff provide to the solicitors for the defendants her PowerBook computer, including but not limited to the computer's hard drive and any removable floppy CD or other DVD disks containing data originating on her PowerBook computer, twenty days before the scheduled start of the trial in an action that had commenced in 2004. Examinations for discovery had already been completed and expert reports exchanged. Defendant was willing to pay for the imaging of the hard disk. The court rejected the idea advanced by the defendant that the hard disk is a document that should have been produced, stating: "As it is the information and not the medium for its storage that may be relevant, I see no basis for the delivery of the hard drive as a document and no basis from departure from the general rule that plaintiff's counsel have the first opportunity to vet any information derived from it for relevance." (para 27) "In the circumstances, taking account of the marginal value for trial purposes and the onerous burden it would put on the plaintiff late in the day, I conclude that I should exercise my discretion in this matter in favour of the plaintiff." (para 32)

Park v. Mullin, 2005 BCSC 1813 (CanLII) Date: 2005-12-30 Docket: 04/0348. J.L. Dorgan, J. The court held that it : "…. has used its discretion to deny an application for the production of documents in the following circumstances: (1) where thousands of documents of only possible relevance are in question: Peter Kiewit Sons Co. v. B.C. Hydro; B.C. Milk Marketing Board v. Aquilini; and (2) where the documents sought do not have significant probative value and the value of production is outweighed by competing interests, such as confidentiality, and time and expense required for the party to produce the documents: Goldman, Sachs & Co. v. Sessions."

White v. Winfair Management Ltd., 2005 CanLII 13037 (ON S.C.) Date: 2005-04-21 Docket: 03-CV-246818CM2 Master Ronald Dash. [9] The choice as to what documents in a party's possession are relevant and should be produced is in the first instance up to the party making production. This is subject to abuse, as a party may not disclose relevant documents, either by design or because of a genuine dispute as to semblance of relevance. The onus then is on a party alleging that relevant documents have been omitted from an affidavit of documents to lead convincing evidence, as opposed to mere speculation, as to the existence and relevance of the documents sought. Often this evidence is obtained by conducting an examination for discovery and asking questions as to the existence of documents, although it is not necessary to first conduct discoveries if convincing evidence otherwise exists: Bow Helicopters v. Textron Canada Limited (1981), 23 C.P.C. 212, [1981] O.J. No. 2265 and RCP Inc. v. Wilding [2002] O.J. No. 2752. The plaintiff herein has asked for a wide scope of corporate and financial records, a substantial portion of which may bear no relevance to the issues herein. Although the plaintiff has provided some evidence that records likely exist as to the financial and corporate relationships among the defendants, an examination for discovery of the defendants could have revealed the precise documentation available and help narrow what documents are relevant to the issues pleaded. I agree with Master MacLeod in RCP Inc. v. Wilding at p. 4 that when dealing with wide categories of business records it may not be possible to determine the extent or depth of the required productions until preliminary questions have been asked at an examination for discovery or a preliminary level of production of a category of documents have been made, then followed by examinations and possibly a follow up motion for a further level of production. The plaintiff has determined to forgo the opportunity to conduct an oral discovery by delivering a trial record, thereby complicating the process of determining the proper documentary disclosure.

Walter Construction v. Catalyst, 2003 BCSC 1582 (CanLII) Date: 2003-10-17 Docket: S01585. Gray J. In a suit for breach of contract, plaintiff seeks an order for further production, including the electronic versions of documents already produced in paper. No support for the position that further production would be onerous. The court found that the the documents sought would be relevant and ordered the production. See Annex A for excerpts from the Notice of Motion. N.B. no apparent provision for privilege, although court does mention that there may be sensitive of privileged information in the electronic documents in para 38, inviting the parties to apply for a further order if they cannot agree on what will be produced.

Effect of failure to disclose or produce for inspection

Failure to Disclose or Produce Document

Rule 30.08 (1) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 provides for the situation "where a party fails to disclose a document in an affidavit of documents or a supplementary affidavit, or fails to produce a document for inspection".

Failure to Serve Affidavit or Produce Document

Rule 30.08 (2) of the Ontario Rules of Civil Procedure, Courts of Justice Act, R.R.O. 1990, Regulation 194 provides for the situation "where a party fails to serve an affidavit of documents or produce a document for inspection."

See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para 54 definition of "material fact". "A cause of action has traditionally been defined as comprising every fact which it would be necessary for the plaintiff to prove, if disputed, in order to support his or her right to the judgment of the court: Poucher v. Wilkins (1915), 33 O.L.R. 125 (C.A.). Establishing each such fact (sometimes referred to as material facts) constitutes a precondition to success."

See Delaney & Friends Cartoon Productions Ltd. v. Radical Entertainment Inc. et al, 2005 BCSC 371, at para 9 for the distinction between material facts and particulars: "A material fact is one that is essential in order to formulate a complete cause of action. If a material fact is omitted, a cause of action is not effectively pleaded. Particulars, on the other hand, are intended to provide the defendant with sufficient detail to inform him or her of the case he or she has to meet (em>Bruce v. Odhams Press, Limited, [1936] 1 K.B. 697 (C.A.)). Particulars are provided to disclose what the pleader intends to prove. How that party intends to prove the material facts and particulars is a matter of evidence. The pleading party is not required to, and indeed, is not entitled to set out in the pleadings the evidence that he or she intends to adduce at trial to prove the facts that have been pleaded."

Farallon Mining Ltd. v. St. Eloi, 2012 BCSC 609 Date: 2012-04-26 Grauer J. An internet defamation case where the defendant has so far provided inadequate justification and the plaintiff seeks to have some or all of his defense struck. Allegations of theft and fraud in the defendant's pleading need to be particularized. See para 30 onward.

L’Abbé v. Allen-Vanguard, 2011 ONSC 4000 (CanLII) Date: 2011-06-24 Master MacLeod. At para 35, the Master points out: "Even at the pleading stage parties should have an eye on what issues will be raised by the litigation and therefore what will be the scope of production and discovery. It is then the responsibility of each party to understand who might be the potential custodians of relevant information and to understand its own information architecture. Without a technical understanding of what information is stored and where it is located, it is difficult or impossible to estimate how long it will take to retrieve such information, what processes should be used and what cost might be involved."

Covelli v. Sears Canada Inc., 2011 ONSC 1850 (CanLII) Date: 2011-03-23. Master Sproat. In a wrongful dismissal case, defendants moves to strike claims alleging "that Sears has adopted a corporate policy or practice of terminating employees for just cause, notwithstanding that it knows or ought to know that no just cause at law exists, as a means of unlawfully evading its statutory and common law obligation to provide employees with notice of termination, or compensation in lieu of notice". Defence expects the allegation will result in discovery of "monstrous proportions". Court sorts through conflicting authorities and concludes that the claims are not "scandalous, frivolous and vexatious or otherwise an abuse of process", agreeing that discovery plan process can be used to place parameters on the information that can be obtained, including "staged production".

Zecher v. Josh, 2011 BCSC 311 (CanLII) Date: 2011-03-15 Docket: 08 3690 Master C.P. Bouck. Personal injury case in which the defendants seek evidence that some of the complaints relate to pre-existing conditions by soliciting PharmaNet records. The defence argues that "(T)he response states that the PharmaNet records need not be produced as those records could not be used to prove or disprove a material fact as that concept is discussed in Biehl v. Strang 2010 BCSC 1391. Nor do the records assist the defendants in proving or disproving such a fact." The court denied the motion because the notice of application was "deficient in identifying the basis for an order requiring production of these records". At para 48, the court says: "(I)n this case, I do not have the benefit of knowing whether the statement of defence pleads a pre-existing condition or injury. It would be wrong for me to go behind the application record to determine that fact. All that has been said is that causation is in issue. That statement is not sufficient for me to determine whether pre-accident pharmacological records are relevant."

Javitz v. BMO Nesbit Burns Inc., 2011 ONSC 1332 (CanLII) Date: 2011-02-28 Docket: CV-10-8951-00 CL ; CV-10-8937-00 CL ; CV-10-8950-00 CL. Pepall J. In this fraud case, the defendants have brought a motion to strike portions of the statement of claim, including one regarding other fraudulent activities involving other clients. The Court said, at para [25], "In my view, these portions of the pleading should be struck on a number of grounds. These allegations will greatly expand the breadth, complexity and expense of the litigation in circumstances where the corresponding probative value is minimal. Discovery of the massive fraud including other customer accounts would be required. An examination of the circumstances of each fraud and what Nesbitt knew of each of them and disclosure of detailed, confidential financial information of other Nesbitt customers would be required. As Molloy J. stated in Brodie on the issue of an investment advisor's conduct relating to other investors: It adds very little to the plaintiff's claim and its absence could not deprive her of a cause of action or reduce any compensatory damages to which she might be entitled. On the other hand, allowing the pleading to stand will result in a far more expensive and complex proceeding. Production and discovery will be considerably more protracted and complicated. There will likely be numerous interlocutory motions in respect of confidentiality issues and the rights of non-parties to protect their privacy."

Lewis v. Cantertrot Investments Limited, 2010 ONSC 5679 (CanLII) Date: 2010-10-18 Docket: 04-CV-277412CP. C. Horkins J. The costs of unfounded allegations of fraud and deceit in a class action. Plaintiffs did not withdraw the allegations even after discoveries uncovered no evidence to support them. The court awarded substantial indemnity costs.

MCAP Leasing v. Lind Furniture, 2010 ONSC 4308 (CanLII) Date: 2010-08-03 Docket: 3569/09 D.G. Price. J. Reasons for costs in plaintiff's unsuccessful motion for summary judgment. At para 43, the court says, "had Lind articulated its defences with greater particularity from the outset, it would have better enabled MCAP to assess its prospects of a successful motion for summary judgment. This might have avoided the expense that both parties incurred in the motion, either by engaging MCAP's willingness to negotiate a resolution of the action or by prompting it to wait until more evidence emerged through discoveries before assessing its prospects of a successful motion or trial." Lind was awarded $15,000 of the $23,591.06 it had asked for.

Szeto v. Dwyer, 2010 NLCA 36 (CanLII) Date: 2010-05-31 Docket: 09/18. Green, C.J.N.L., Roberts and Welsh, JJ.A. This is an appeal from an interlocutory decision of a Trial Division judge ordering answers by the appellants (plaintiffs in the original proceeding) to certain interrogatories, delving extensively into medical and financial histories, delivered by the respondent (defendant) in a personal injury claim arising out of a motor vehicle accident. The court observed that the problem started with the statement of claim, which gave no detail about either the types of injuries or the damages. [36] The drafting of over-broad interrogatories could potentially have been avoided if the defendant had, instead of jumping into interrogatory-mode, sought "a further and better statement of the nature of the claim" or "further and better particulars" under rule 14.23. [65] Rather than forcing a party to make an expensive, time consuming and possibly unnecessary application, attempts should be made to have matters dealt with by discussion between, or agreement by, counsel. Adverse costs consequences may result where, on an application, it appears that the actions of, or positions taken by, one party are materially counterproductive to the expeditious, cost effective and fair determination on the merits.

Mathieson v. Scotia Capital Inc., 2010 ONSC 368 (CanLII) Date: 2010-01-25 Docket: 07-CV-335295PD2 M. A. Code J. "As set out at para. 8 of the main judgment, the allegation of "bad faith" was central to two of the three issues at trial. I estimate that ninety per cent of the evidence at trial, both viva voce and documentary, was focused on attempts to prove or negate the allegation of "bad faith". At para 11, the Court observes, "Given that the great majority of the costs incurred in this case were driven by the failed allegation of "bad faith", I conclude that the Plaintiff was substantially unsuccessful and that the Defendant achieved substantial success in negating this serious allegation." At para 27, the Court further says, "(g)iven the very aggressive way in which the Plaintiff conducted the litigation, raising unfounded and misconceived issues, summonsing unnecessary witnesses and seeking speculative discovery of further electronic documents by way of repeated motions, it would not be appropriate to subject the Defendant's quantum of work to a microscopic analysis. A different kind of case could have been defended more efficiently but I am not satisfied that this case should have been defended much differently than it was, subject to the one area of concern noted above. The Plaintiff must have known that pursuing an allegation of "bad faith" against a large successful bank, with its reputation to defend, would result in a vigorous defence and very substantial exposure to costs." Defendants were awarded costs of $240,000.

International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2007 BCSC 1724 (CanLII) Date: 2007-11-28 Docket: S021747. S.K. Ballance J. In a marathon trial that resulted in the dismissal of the Plaintiff's claims, the Defendants seek exceptional costs as a punitive measure. The plaintiff had alleged fraudulent and/or negligent misrepresentation in addition to breach of contract, breach of trust and fiduciary duty, and unjust enrichment. At para 18, the Court says that special costs are warranted because "this is a case where the allegations of fraudulent misrepresentation, conspiracy and the like, which encompassed accusations of deliberate falsification of documents, extortion and the creation of an illicit partnership, did not have a shred of real evidence." The Registrar's decision on the costs, amounting to well over $1 million, is 2009 BCSC 628 .

Canadian Council of the Blind v. Davis, 2007 CanLII 51159 (ON S.C.), Date: 2007-11-27, Docket: 03-CV-025055 . Master MacLeod, at paras 13 and 14. [13] A pleading should not be simply a recitation of facts that may support a defence or counter claim. Besides admitting the facts that are true and denying those that are not, the party pleading should approach the matter with a clear understanding of the additional facts that constitute a defence and with respect to the counterclaim should have a clear theory of liability and damages. Assuming the facts exist to support the theory, those are the facts to be included in the pleading. Because the pleadings establish the boundaries of production and discovery and delimit the issues for trial, the consequences of vague and unfocused pleadings will be exaggerated costs and more difficult pre-trial and trial proceedings. [14] A reader of pleadings should be left in no doubt what the case is about and what the issues are that must be tried.

Ford v. F. Hoffmann-Laroche Ltd., 2005 CanLII 46753 (ON S.C.D.C.) Date: 2005-12-16 Docket: 660-01.Winkler R.S.J., Carnwath & Swinton JJ. Costs of $144,000 awarded against the solicitor and colleague in the determined pursuit of an action stayed by the court when it certified the class proceeding, including allegations of fraud and deceit against another lawyer and the production of voluminous irrelevant material.

Air Canada v. WestJet Airlines Ltd., 2004 CanLII 66339 (ON S.C.) Date: 2004-10-12 Parallel citations: 72 O.R. (3d) 669. Nordheimer J. The plaintiffs bring this motion to strike out certain paragraphs of the statements of defence of each of the defendants and to strike out certain paragraphs of the counterclaims advanced. At para [7] the Court states, "(t)he plaintiffs' claim in para. 1(f) is for damages "including but not limited to" loss of incremental revenue and goodwill. They expand on this claim in para. 40 to say that they have suffered "substantial loss including" incremental revenue and goodwill. The plaintiffs' claim is essentially an open-ended claim for damages of which incremental revenue and goodwill are components. It is, therefore, open to the defendants to plead, in response to this broad claim for damages, facts which would establish that some or all of the plaintiffs' damages were not caused by their conduct." The Court goes on to say at para [11] "In order for the trial judge to be able to determine the appropriate amount to be awarded that would put the plaintiffs in the same position they would have been in if no wrong had been committed may require the court to engage in a fairly broad review of the plaintiffs financial state. The plaintiffs cannot, at this early stage of the proceeding, circumscribe the nature of that inquiry. They certainly cannot deprive the defendants of information that the defendants may need in order to demonstrate that harm that the plaintiffs say they have incurred was not in fact the result of any actions of the defendants but arose from extraneous events."

Trafalgar Industries of Canada Ltd. v. Pharmax Ltd., 2003 CanLII 40313 (ON S.C.) Date: 2003-04-28 Docket: 01-CV-207221SR Wilson J. Pleading practice in cases falling under the Simplified Procedures. At para 24, the court states how counsel for the plaintiff could have narrowed the issues and shortened the trial.

Border Enterprises Ltd. v. Beazer East, Inc., 2003 BCSC 49 (CanLII) Date: 2003-01-09 Docket: C974540 Tysoe J (as he was then). In an environmental case, the defendants demand particulars of the allegations. In essence, "the real competition between the parties is that the Federal Crown wishes to keep its allegations against Beazer as broad as possible, while Beazer wishes to know the allegations with particularity. The Federal Crown wishes to leave the door open in case the discovery process discloses additional information which supports claims of the nature pleaded against Beazer. On the other hand, Beazer wants to know the case it has to meet and wishes to limit the amount of documents which it is obliged to produce on discovery." (para 29) The court held, "(T)he Federal Crown is required to make specific allegations against Beazer on the information which is known to it and those allegations form the basis of relevancy for discovery purposes. If the Federal Crown learns additional information, it is entitled to provide further particulars and the discovery process will be widened accordingly." "If such misrepresentations were made by Beazer to it, the Federal Crown should be aware of the nature of each misrepresentation, when it was made, who made it, to whom it was made and how the Federal Crown relied on it to its detriment. The discovery process should be limited to the known misrepresentations but if other misrepresentations come to light, the Federal Crown can provide further particulars pursuant to Rule 19(11.1)." (para 32) The court goes on to propose "(a) staged production of documents in the present circumstances for two reasons. First, the Federal Crown has not yet provided adequate particulars of its claims against Beazer and the parameters of discovery are governed by the pleadings (including particulars). Second, in a case such as this one, where the Federal Crown is making broad allegations of material non-disclosure, there should be reasonable limits placed on the extent of document disclosure until there is evidence which establishes that further disclosure is warranted. If one stage of document disclosure illustrates that there are likely to be other relevant documents, then there should be a further stage of disclosure." (para 53)

Alexander v. Pacific Trans-Ocean Resources Ltd., 1993 ABCA 43 (CanLII) Date: 1993-02-26 Docket: 9203-0490-AC . Fraser CJA, Irving and Côté JJA. A case of alleged misrepresentation, market rigging, and other matters with over 300 plaintiffs. Question of how to provide sufficient information to defendants that they could produce documents and prepare for examinations for discovery. Court concluded best approach was to allow a first wave of particulars from at least 10 of the plaintiffs, after which the defendants could file their initial defense. The remaining plaintiffs were required to file their particulars over a six month period, with the defendant free to amend his pleadings as he received details of ther alleged misrepresentations.

Culligan Canada Ltd. v. Fettes, 2009 SKQB 343 (CanLII) 2009-09-01. Ball J. In an application for injunctive relief in a breach of fiduciary duty and misuse of confidential information by former employees, the plaintiff seeks, among other things, an order for preservation and production of information. In para 50, the court states that the plaintiffs did try to recover information from the laptops used by the former employees, but the critical documents on the disks had disappeared and there was a disk-wiping utility on all the laptops, according to the forensic company FDR. In para 87, the court confirms the parties were obligated to take "reasonable and good faith steps to preserve and disclose relevant electronically stored documents. If deleted or residual documents may be relevant, that information must be communicated to the other party early to mitigate the consequences of potential claims of spoliation". In para 88, the court then extracts language from Practice Direction 6, E-Discovery Guidelines, that came into effect September 1, 2009. The Guidelines require parties to confer early and throughout the proceedings. The court therefore declines to make the order until the conferences have taken place.

Nac Air, LP v. Wasaya Airways Limited, 2007CanLII 51168 (ON S.C.) 2007-11-23 Docket: CV-07-0464 H.M. Pierce J. Plaintiff alleges defendants accessed its confidential website to obtain information about rates, having formed that opinion after several months of monitoring access to its website and patterns of rate changes. (para 6) Plaintiff was granted an Anton Piller order to seize computer files and other documents, but during execution seized images of a computer that was not included in the order. Defendants moved to have the AP order set aside, arguing that the plaintiffs did not prove that there was a real possibility the defendants would destroy the information. Court focused on whether there was a possibility of intentional (italics in the decision) destruction, choosing not to accept plaintiffs' argument that the destruction of "evidence of browser sessions including IP addresses" would happen during everyday use of the computer, whether intentional or otherwise. Court also questioned urgency, since plaintiff waited from March to November before seeking the order, although plaintiff had explained that it was monitoring access to the website to confirm its suspicions. Court "concluded that the plaintiffs have not demonstrated on a balance of probabilities that there is a real possibility that the defendants may destroy such material before discovery." The Court ordered the return of the material seized and substituted a non-specific order to "preserve documents relevant to issues in the litigation". (para 36)

Doust v. Schatz, 2002 SKCA 129 (CanLII) Parallel citations: (2002), 32 R.F.L. (5th) 317; (2002), 227 Sask. R. 1 Date: 2002-11-26 Docket: CA02129;462. Tallis J.A. "A party is under a duty to preserve what he knows, or reasonably should know, is relevant in an action. The process of discovery of documents in a civil action is central to the conduct of a fair trial and the destruction of relevant documents undermines the prospect of a fair trial." (para 27)

HSBC Bank Canada v. Creative Building Maintenance Inc., 2006 CanLII 18361 (ON S.C.) Date: 2006-05-26 Docket: 06-CL-0006425. Cumming J. "THIS COURT ORDERS that unless otherwise ordered by this Court or authorized or agreed to by the Receiver, the Individuals shall not: (a) part with the possession or control of any and all of the Records or monies appropriated from HSBC, RoyNat, and KeyBank; (b) hide, destroy, or deface the Records; (c) directly or indirectly remove anything with a market value in excess of $25,000 from the property known municipally as 2205 Dunwin Drive, Mississauga Ontario L5L 1X1 (the "Headquarters") or such parts of the Headquarters as are in the Individuals' control. (d) erase or delete from any means of electronic storage or transmit any of the Records from the Headquarters or alter, deface, discard, conceal or destroy in any manner any of the Records or any-other thing in their possession; or (e) activate or operate either locally or remotely from any location away from the Headquarters or access or alter any Records stored in any location remote from the Headquarters that may constitute the Records." (para 10)

Fuller Western Rubber Linings Ltd. v Spence Corrosion Services Ltd., 2012 ABCA 137 Date: 2012-05-07 Côté, Slatter, Belzil JJA. An appeal from a finding of contempt for the destruction of documents. The chambers judge found the individual appellant in contempt for counselling the health and safety consultant to destroy documents, for the material purpose of interfering with the administration of justice: Fuller Western Rubber Linings Ltd. v Spence Corrosion Services Ltd., 2012 ABQB 163 at para. 41. Based on the uncontested facts, the Court saw no reviewable error in the finding of contempt. However, the remedy requiring a forensic audit of the computer from which the file had been deleted was itself deleted.

Brown v. Wilkinson, 2012 BCSC 398 Date: 2012-03-20 Destruction of physical evidence despite receipt of a letter requesting its preservation results in order to produce adjuster's documents over which privilege is claimed.

Patzer v. Hastings Entertainment Inc., 2011 BCCA 60 (CanLII) Date: 2011-02-04 Docket: CA038081 Huddart, Low, Smith JJA. An appeal from a dismissal of an action in which the appellant (claimant) sought $6.5 million on a ticket issued in error. The plaintiff had also sought a remedy based on spoliation, since the defendant had destroyed the betting slips. Discussion of spoliation in the context of this claim starts at para 30.

Sunderji v. Alterna Savings, 2010 ONSC 1223 Date: 2010-02-09 Docket: 07-CV-39896 Master MacLeod. Plaintiff moves to amend pleading to add spoliation, contending that destruction of the documents should attract either a negative evidentiary presumption or damages or both. The defendant challenges the increase in the prayer for relief if it is based on damages for spoliation because the plaintiff has not pleaded cause and effect or particularized the calculation of damages. The defendant will be entitled to know the calculation of damages prior to trial but there is no prejudice in simply raising the amount of the claim as proposed.

White v. The Queen, 2009 TCC 539 (CanLII) Date: 2009-11-09 Docket: 2007-1665(GST)G ; 2007-1561(IT)G B. Paris J. The Appellant seeks an order allowing his appeal based on grounds that the respondent has not disclosed all relevant documents and has destroyed relevant information. Although the Respondent acknowledges it does not have standard information management retention and destruction policies, the court did not find that the missing information was intentionally destroyed, nor that the Appellent had shown that the missing documents were necessary to its case or how the loss of the documents prejudiced his case. (Paras 18 and 19)

Cerkownyk v. Ontario Place, 2009 CanLII 62065 (ON S.C.) 2009-10-22 Master Brott. In this personal injury case, the defendants sought to compel the plaintiff to produce her computer. Plaintiff's counsel advised the solicitor for the defendants that "the plaintiff's computer became corrupted and the information was not retrievable after a professional attempted to save her data. The plaintiff took several captures which show the corruption of the hard drive." Plaintiff's counsel offered to consent to an amendment of the Statement of Defence to plead spoliation of evidence. (para 5) The defendants further assert that there is no credible evidence that the computer was destroyed and accordingly the court must ignore all of the responding evidence and order that the computer be produced for inspection. (para 9) The Master wrote that the proceeding had gone astray, and that whether or not the computer was corrupted or was still available, plaintiff's counsel had sworn an Affidavit that the computer was no longer available, and that it would be at trial where the plaintiff would be asked to explain on cross-examination the whereabouts of her hard drive and the actual computer. See Dan Michaluk's summary here.

Kulynych v Manitoba Lotteries, 2009 MBQB 187 (CanLII), 2009-06-30, Spivak J. Videotape evidence that the plaintiff was wearing sunglasses at the time of a fall that caused an injury to her wrist was "no longer in existence" despite advice to the surveillance department to hold the tape for 36 months. However, evidence from the investigative security officer who had seen the videotape and had watched the incident as it happened was considered credible by the court. The court also found there was no evidence of intentional or deliberate destruction that would justify a spoliation inference.

Jay v. DHL, 2009 PECA 2 (CanLII), 2009-02-13, S1-AD-1151, Chief Justice D.H. Jenkins. "Appeal from decision of motions judge striking out the statement of defence for failure to produce documents - Appeal allowed, and relief granted to the appellant under Rule 30.08 by making such other order as is just." Dan Michaluk's summary is here.

Holland v. Marshall, 2008 BCCA 468 (CanLII) Date: 2008-11-18 Docket: CA034582 ; CA035819. The Honourable Madam Justice Rowles. "Justice Brooke stated his understanding of the law of spoliation based on four case authorities to which he was referred by counsel for the respondents. The following is a summary of what was stated: 1. A rebuttable evidentiary presumption arises where evidence of spoliation exists; the doctrine of spoliation is an evidentiary rule raising a presumption and not an independent tort giving rise to a cause of action (St. Louis v. Canada (1896), 25 S.C.R. 649). 2. In an appropriate case, destruction of documents carries a procedural but not substantive remedy, an action for damages cannot be sustained solely on the ground that documents have been destroyed (Endean v. Canadian Red Cross Society 1998 CanLII 6489 (BC C.A.), (1998), 48 B.C.L.R. (3d) 90 (C.A.)). 3. Spoliation requires four elements in evidence: a) the evidence has been destroyed; b) the evidence destroyed was relevant to an issue in the lawsuit; c) legal proceedings were pending; and d) the destruction of documents was an intentional act indicative of fraud, or an intention to suppress the truth (Dyk v. Protec Automotive Repairs 1997 CanLII 2114 (BC S.C.), (1997), 41 B.C.L.R. (3d) 197 (S.C.)). 4. There is no common law duty of care to preserve property which may possibly be required for evidentiary purposes; such an obligation can only be imposed by court order granted pursuant to the Rules of Court (Dawes v. Jajcaj, 1999 BCCA 237 (CanLII), 1999 BCCA 237, 66 B.C.L.R. (3d) 31, aff'g 1995 CanLII 2726 (BC S.C.), (1995), 15 B.C.L.R. (3d) 240, leave to appeal ref'd [1999] S.C.C.A.. No. 347). (para 55)

McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 (CanLII), 2008-10-30, Conrad J.A. An analysis of the law of spoliation in Canada starts at para 15. Of particular interest is the discussion of unintentional but negligent destruction of evidence. "Spoliation should not be confused, however, with the unintentional destruction of evidence. This may also give rise to a remedy, but the remedy will be founded on other principles. For example, where the opposing party is put to the task of having to prove its case through the use of other evidence, in circumstances where it could reasonably have anticipated that the evidence would exist, an award of costs might be appropriate. In addition, the courts have a broad discretion to fashion remedies to avoid abuse of process, and the court's rules of procedure are designed to assist the parties in ensuring trial fairness. Obviously, where the goal is to award remedies to even the playing field, the reason for destruction is less important. Generally such remedies are covered, and should be covered, through application of existing practice rules (or the development of further rules) and the exercise of the court's discretion to avoid an abuse of process or award costs. Intention may not be necessary in those circumstances. But the unintentional destruction of evidence is not spoliation, and it is not appropriate to presume that missing evidence would tell against the person destroying it where the destruction is unintentional and the trier of fact cannot draw the adverse inference that the evidence was destroyed because it would tell against the spoliator." (para 25) Canadian law of spoliation is summarized in para 29.

Dreco Energy Services Ltd. v. Wenzel, 2008 ABQB 489 (CanLII) Date: 2008-08-11 Docket: 0203 12910 S.J. Greckol J. "Amongst the many procedural issues that have arisen en route to trial, the Plaintiffs claimed that documents stored on computers used in the Defendants' business were erased, thwarting their entitlement to full discovery. Orders for forensic inspection of the computers were made in order to retrieve any lost information. The way in which the inspection would proceed became contentious and exceedingly expensive. The Plaintiffs now seek reimbursement of their costs for the forensic inspection. The Defendants deny responsibility for these costs, arguing that the evidence does not demonstrate wrongful destruction of evidence by them. They argue that in any event, this matter of costs should be determined at trial because the entire relevant chronology of events must be examined and credibility findings made in order that the decision be fairly made." (para 2) See Dreco below for the history up to 2006.

Tarling v. Tarling, 2008 CanLII 38264 (ON S.C.) Date: 2008-07-29 Docket: 05-33/05. Herman J. Estate dispute between sons of the deceased. One son is alleging that the other influenced the father to alter his will in his favour. "Frank submits that William Jr. knowingly and intentionally destroyed evidence that would have been detrimental to William Jr.'s case and helpful to Frank's. He argues that this is a basis for a substantive claim for damages as well as a reason for the court to impose sanctions. Frank claims that William Jr.'s destruction of evidence constitutes an independent actionable wrong for which damages should be awarded." (paras 154-5) "William Jr. also arranged for the contents of William Sr.'s computer to be wiped out. This occurred in February 2005. He explained that the computer was not working properly. He took it to be fixed and was advised that the computer hard drive needed to be cleaned out and reprogrammed." (para 161) Frank substantiates his claim for spoliation with an email William Jr did NOT produce. The court concluded "In my opinion, this e-mail is no more unfavourable to William Jr. than other e-mails that he did produce that show his involvement in William Sr.'s dispute with Frank. In light of this and in view of the significant volume of documents that William Sr. did produce, I am unable to conclude that William Jr. intentionally destroyed relevant evidence. In the result, Frank's claim for damages arising from William Jr.'s destruction of documents is dismissed. Similarly, I cannot, in the circumstances, conclude that any other sanction for the destruction of documents is warranted." (paras 167-8) The court does not comment on whether the letters from Frank's lawyer to William Jr in January 2005 should have triggered an obligation to preserve the hard disk that Frank had wiped in February 2005. Dan Michaluk's summary is here.

Galenzoski v. Awad, 2007 SKQB 436 (CanLII) Date: 2007-11-23 Docket: QBG 2157/04 JCR Hunter J.A. The Court dismissed the claim because there was no duty to preserve the records at the time they were destroyed, which was before litigation was filed, apparently pursuant to a routine records management process and in accordance with a compliant records retention period. The Court did not comment on whether litigation was reasonably foreseeable at the time the records were destroyed. (para 174)

Elliott v. Trane Canada Inc., 2008 NBQB 79 (CanLII) Date: 2008-02-27 Docket: S/C/664/03 ; S/C/915/03 Peter S. Glennie J. Dismissal of a counter-claim in a termination of franchise suit based on negligent spoliation. Defendant Trane and the successor franchisee destroyed documents that the plaintiff Elliott would have used in its defence against the counter-claim. Defendant Trane knew or should have known that the information was relevant to the dispute regarding back charges. Plaintiff argues for an adverse inference, "bolstered by the fact that the letter outlining the termination details requires Trane to make the records available to Elliott if such records become necessary for a legal action. Elliott says that requests were made for these files during the litigation and Trane refused to produce them." (paras 222-227) Nice summary by Dan Michaluk here.

Jay v DHL, 2008 PESCTD 13 (CanLII)Date: 2008-02-13 Docket: S1 GS-18505. Kenneth R. MacDonald J. In a case involving loss of opportunity costs (among other claims), the plaintiff has sought disclosure of evidence of revenue by other contractors working for the defendant in the form of copies of waybills and associated invoices showing the weight and dimensions of the packages delivered. The plaintiff has been requesting this information since 2003 and successfully moved for an order for its production in January 2006. Having not received it by late October 2006 the plaintiff moved to strike out the statement of defence. The court delayed judgment to give the defendants more time to produce the documents. The plaintiff again moved to strike the defendants' pleadings in May 2007 and that motion was heard in November 2007. At that hearing the Senior VP of the defendant reviewed the processing of waybills and invoices in Canada. Since 2000 paper copies of waybills had been scanned and destroyed after 9 months. The policy continued even after the plaintiff had specifically requested the information in 2003. Paper waybills represent about 30% with the remaining transactions being processed electronically. All computer facilities are centralized in the U.S. In October 2005 the computer system crashed, losing critical information. Evidently backup processes had not been strictly followed, and although the images could be recovered, the indexes by which the transactions/waybills would be searched were irretrievable. Using alternate approaches the defendant has been able to produce some of the information, but not the dimensions and weight requested. The court dismissed the statement of defence and recommends that the plaintiff proceed with a motion for default judgment.

Vescio v. Garfield, 2007 CanLII 24676 (ON S.C.) 2007-07-03 Docket: 03-CV-245266CM2 Moore J. Case involving missing hospital records in the case of a child who subsequently became very ill and disabled. Plaintiff alleges spoliation. "224] The plaintiffs also assert that non-preservation of documents in contravention of a duty to preserve the documents, whether the result of intentional or negligent acts or omissions, raises the doctrine of spoliation and an adverse inference against the defendants." "[237] Again I note that the absence of records has not hampered the plaintiffs' experts in reaching their conclusions. The available records are sufficient in number, nature and content, when read in concert with the evidence of the very people who saw Isaac that day, to establish that Isaac was healthy, not jaundiced and was feeding well at the time of his discharge on Sunday."

Inform Cycle Ltd. v. Rebound Inc., 2007 ABQB 319 (CanLII)2007-05-16 Docket: 0501 02030 D.L. Shelley J. The Plaintiffs "suggest that the Rebound Defendants have disposed of electronic evidence or failed to preserve it but do not indicate what this evidence might be...they fail to indicate what these documents might be and confirm that through the course of cross-examination there were documents which were identified which were subsequently produced by way of undertaking. They do not indicate what additional documents the Rebound Defendants have failed to produce." (para 20) The Court dismissed the claims.

Arrow-West Equipment Ltd. v. GDT Trading Ltd., 2006 ABQB 762 (CanLII) Date: 2006-10-17 Docket: 0503 07699. L. Darlene Acton J. An application to find the Defendants in contempt of court for swearing a false affidavit, destruction or manipulation of evidence of a laptop, and failure to attend Examinations for Discovery. The court was not satisfied beyond a reasonable doubt that the Plaintiff has proven that the Defendants manipulated the evidence or destroyed or permanently deleted any of the Plaintiff's data... While the Plaintiff has not proven that there was manipulation of evidence which would amount to contempt of Court by the Defendants, the activity which took place on the computer does raise suspicions. (paras 41 and 42). Defendants declared to be in civil contempt for failing to comply with the orders of Lefsrud J. and were fined $5,000 each.

Burrill v. Ford Motor Company of Canada Ltd., 2006 CanLII 34271 (ON S.C.) Date: 2006-10-11 Docket: 26726. Heeney J. Liability in a motor vehicle accident. Question of improper assembly of the front left wheel. Although truck and its component parts were made available to all experts on both sides for inspection, the component parts were later lost or destroyed while in the custody of the plaintiff's insurer and could not be produced for exhibit during the trial. Defendant's counsel concedes there is no great prejudice to the defendant because experts had had the opportunity to view the parts. Although the parts were considered relevant and were destroyed while litigation was pending, the Court concluded the the allegation of spoliation was not proven because there was no evidence to support that the parts had been destroyed for fraudulent purposes or to suppress the truth. (paras 123-127). Relies on Dyk v. Protec Automotive Repairs, 1997 CanLII 2114 (BC S.C.) for an analysis of American and Canadian case law.

Western Tank & Lining Ltd. v. Skrobutan et al, 2006 MBQB 205 (CanLII) Date: 2006-09-14 Scurfield J. Evidence that the defendants attempted to destroy evidence of their pre-resignation activities by erasing information from their computers attracted an adverse inference that they were probably involved in the direct solicitation of the plaintiff's customers before leaving the employment of the plaintiff. The court also took the spoliation into account to impose more rigorous injunction prohibitions than it would have normally. (paras 20-23)

Sussex Insurance Agency.Com Inc. et al v. ICBC, 2006 BCSC 1269 (CanLII) Date: 2006-08-18 Docket: S013226. N. Garson J. After the court dismissed the plaintiff's claim, it applied for an order that the trial be reopened, based on an allegation that the defendant, ICBC, concealed and destroyed documents that were relevant to the plaintiff's case. The court concluded that the plaintiff has not proven there was a conspiracy or intentional wrong doing on the part of ICBC employees, inside counsel, or outside counsel, charged with managing and conducting the defence of this action, and that none of these documents either individually or when considered collectively would probably affect the conclusions. (para 99 - 103)

Spencer v. Quadco Equipment Inc. and others, 2005 NBQB 2 (CanLII) Date: 2005-01-05 Docket: S/C/755/00. William T. Grant J. A nice discussion of the law starting at paragraph 17, in which the court says "The law concerning spoliation in Canada begins with the decision by the Supreme Court of Canada in St. Louis v. R. (1895) S.C.R. 649 which stands for the proposition that where one party destroys evidence there is a rebuttable presumption that the evidence destroyed would have been adverse to that party's interest." In the following paragraphs there is a discussion of the case law in various jurisdictions, including the U.S. cases Silvestri v. General Motors Corp., 2001 U.S.App. Div. LEXIS 24413 (4th Cir. 2001) and Northern Assurance Co. v. Ware, 145. FRD 281, 283 (D. Me. 1993).

Dreco Energy Services Ltd. v. Wenzel, 2006 ABQB 356 (CanLII) Date: 2006-05-12 Docket: 0203 12910. S.J. Greckol J. A large corporate commercial and intellectual property suit. After a fine was imposed by the judge because answers to undertakings were not delivered to counsel for the Plaintiff, the Defendant appealed the fine. The Court of Appeal (Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) considered new evidence that certain computer records were destroyed or erased. The CA remitted the order back to the court, saying "In terms of the sanction for contempt, we are of the view that the amount ordered is not adequate for its purpose. Requiring those in contempt to pay a part only of thrown-away costs related directly to the contempt does not bring home to the contemnors the seriousness of their actions and their responsibilities for the consequences attributable to that contempt. There is a public policy aspect to this entire issue. Generally, in principle, those who are found in civil contempt ought, at a minimum, to be required to accept responsibility for a substantial portion of the costs directly related to that contempt. It may be that a judge would also consider it appropriate to impose further monetary penalties or other sanctions, whether including striking of pleadings, drawing of adverse inferences, etc." (para 9) The CA went on to suggest seven considerations for assessing which sanctions should be imposed, which the judge used in her analysis. (para 10). The Court ordered the Defendant to pay the Plaintiff's "throw-away" costs, amounting to $136,146.27, plus GST, and to take all available steps to try to retrieve the information that has been lost and are to bear the costs of those efforts in any event of the cause. If the computer files cannot be retrieved, pursuant to Rule 704(1)(c), the Defendants are to pay a fine of $75,000.00, for which they will be jointly and severally liable. (paras 53,54)

Brandon Heating & Plumbing (1972) Ltd. et al v Max Systems Inc., 2006 MBQB 90 (CanLII) Date: 2006-04-10 Docket: CI 99.02.00265. Mykle J. "The plaintiff knew from the pleadings that the computer hardware and network operating system were relevant to this action. In fact, the plaintiff was specifically asked, and undertook, to preserve the hardware in the state that it was at the time of the discovery, for the purpose of inspection." (para 26) "The destruction of the hardware required a willful act on the part of the plaintiff, and was a clear breach of the undertaking not to do this until advised as to whether it would be inspected. At the very least, it shows a careless disregard for the undertakings given." (para 27)

Dreco Energy Services Ltd. v. Wenzel, 2005 ABCA 185 (CanLII) 2005-06-06 Docket: 0403-0234-AC. Fraser, C.J.A. The Court of Appeal lays out seven factors for consideration when assessing possible sanctions: "1) the role of counsel, including the extent to which the actions of the respondents' counsel might have contributed to the respondents' contempt; (2) the motivation for the destruction/erasure of the computer records while the undertakings to produce them remained extant; (3) the consequences flowing from the destruction of those records and what redress should flow from that, including consideration of whether any adverse inferences should be drawn as a result thereof; (4) the entire context and history of the litigation; (5) the amount of reasonable thrown-away costs properly incurred; (6) the nature of the contempt; and (7) the degree of culpability of the contemnors."

Canplas v. McKee, 2012 ONSC 1416 Date: 2012-02-28 Master Abrams. The defendants seeks an order to protect the confidentiality and secrecy of certain information, similar to that in their litigation in Federal Court. The plaintiff objects because their agreement in the discovery plan did not restrict disclosure and production of information in any way, and that the defendant had already undertaken to produce the documents. The court notes that the timing coincides with when the confidentiality issue was raised in Federal Court and is not unreasonable. Discovery plans can evolve as circumstances change.

Kariouk v. Pombo, 2012 ONSC 939 Date: 2012-02-14 Master MacLeod. The plaintiff was hired to design and plan the renovation of a historic home which the defendants had purchased in Ottawa. Apparently the renovation took much longer than anticipated and according to the defendants it cost three times what they had been led to believe. Accordingly when the plaintiff sued the defendants for a $40,000.00 outstanding fee he was met with a counterclaim for $750,000.00. Starting at para 37, the court reviews the procedural history and the discovery planning process. The plaintiff had proposed a discovery plan, but the defendant had refused to formally sign off pending agreement on an electronic format for exchanging documents. The court points out that discovery plans can be modified as more information is received - "(t)he obligation to engage in discovery planning includes an obligation to confer at the outset and to continue to collaborate on an ongoing basis in order that the plan may be adjusted as necessary." The court refers to The Sedona Canada Commentary on Cost Containment.

Great Canadian Gaming Corporation v 1632842 Ontario Limited, 2011 ONSC 6414 Date: 2011-10-28 C. Campbell J. Great example of a discovery plan! See Minutes of Settlement attached to endorsement. Covers Scope of Production (very specific), the Data Set for Review, the Review Process, the Production of Documents (including agreement about standard field metadata and the coding conventions), Costs (and how tracked), among other details. Brief and to the point.

L’Abbé v. Allen-Vanguard, 2011 ONSC 4000 (CanLII) Date: 2011-06-24 Master MacLeod. The court discusses the consequences to the discovery planning process of not having a grip on the information architecture starting at para 31. ..."A party might be forgiven for not anticipating the need for documents made relevant by the other party’s pleading but there is far less excuse for not anticipating the documents required because of the party’s own pleading."

McBreairty v. College of the North Atlantic, 2011 NLTD 97 (CanLII) Date: 2011-06-24 Docket: 200501T5570 D. Fry J. In a suit for wrongful dismissal started in May 2005 and following several problems with production resulting in the need for intervention, the court defines precisely what information it expects to have been exchanged one week before the Pre-Trial Conference, starting at para 23. Similar to the kind of information needed for a discovery plan.

Ontario v. Rothmans Inc., 2011 ONSC 2504 (CanLII) Date: 2011-04-26 Docket: 09-CV-387984. Perell J. The court set aside a decision in which the Master ordered the search through millions of pages of documents extending back 35 years. The Master assumed that modern search engines and electronic databases would simplify the process, even if the documents are in un-indexed paper filing cabinets. The court's view was that the question of how the search would be done and the tools to be used should be discussed between the parties and included in the discovery plan. See para 171: "This approach is already envisioned by the Rules of Civil Procedure, where the availability of information technology can be addressed prospectively as part of the preparation for the examinations for discovery. In other words, the availability of search engines and other information retrieval technology should inform the party’s discovery plans that are required by the Rules of Civil Procedure. It is as an aspect of the discovery plans that the parties can address the technology that is available or that might become available to facilitate documentary discovery and the examinations for discovery."

Cameco Corporation v. The Queen, 2010 TCC 636 Date: 2011-01-12 Docket: 2009-2430(IT)G. Rip C.J. Transfer pricing case. At para 55, the Chief Justice invokes Ontario's Rule 29.1 - "In order to avoid delaying further this appeal any longer and in an attempt to demarcate the scope of the discovery with respect to these paragraphs I will order the parties to prepare and file a plan of discovery for matters related to paragraphs 16, 17, 18, 19 and 28 of the reply at least 30 days before the date agreed to for discovery[15]. The plan will be in writing and include the intended scope of the discovery limited to the specific facts described in paragraphs 16, 17, 18, 19 and 28. Failure of the parties to agree may affect costs. This, hopefully, will permit the parties to properly prepare for discovery without any further skirmishing."

Lecompte v. Doran, 2010 ONSC 6290 (CanLII) Date: 2010-11-15 Docket: 10-47905 Master MacLeod. This is a construction lien action that has been made subject to a case management timetable. While claims and defences in construction lien cases are often summarized in a Scott Schedule, a table showing original specification, defect claimed and corrections required, the parties decided to exchange production. The plaintiff has brought a motion for a further a better affidavit of documents and more "focused" production, but has not met and conferred with the defendant or agreed to a discovery plan. At para 14, the Master says, "Discovery planning is intended to permit the parties to map out the most efficient and effective way to organize the production and discovery needs of the particular action having regard to the complexity of the records, the issues in dispute and the amounts at stake. It cannot be an adversarial exercise. Planning is also intended to minimize the need for court intervention but obviously there will be situations in which there are legitimate disagreements. In a case managed environment a case conference may resolve this and in other cases the same end may be achieved by a motion for directions. Specific direction could have been sought on any of the occasions that this matter was previously before the court. [15] A case conference or a motion for directions may well involve competing discovery plans but establishing efficient and effective procedures for these matters must not itself become an occasion for adversarial advocacy. If that occurs the whole point of the exercise will be defeated. Certainly obtaining direction from the court should not normally require lengthy affidavits, voluminous documents, factums and briefs of authorities. A contested motion is a poor planning forum." The motion was dismissed and the parties "directed to confer and to consider how the action may be focused, streamlined and resolved and in particular how production and discovery can be most cost effective and efficient".

Ravenda v. 1372708 Ontario Inc., 2010 ONSC 4559 (CanLII) Date: 2010-08-25 Docket: 5234/06 J.R. Henderson J. This decision deals with motions regarding amendments to pleadings, production of documents, examinations for discovery, and the imposition of a Discovery Plan. Each party had produced a discovery plan but they could not agree on a shared plan. The Court confirms its authority to impose a discovery plan and attaches one as Schedule A. Discussion starts at para 36.

Enbridge Pipelines Inc. v. BP Canada Energy Company, 2010 ONSC 3796 (CanLII) Date: 2010-07-06 Docket: 09-8473-00C C. Campbell J's endorsement of a discovery plan in this complex litigation. The Discovery Agreement is attached to the endorsement, along with a Glossary at Appendix A and a Technical Production Agreement at Appendix C. At para 3, the Court stresses that not every action requires a discovery plan of this level of detail, and that an informal agreement between counsel may be appropriate in many cases.

TELUS Communications Company v. Sharp, 2010 ONSC 2878 (CanLII) Date: 2010-05-17 Docket: 07-CV-08 -361484 Master Short. Addresses the situation where one of the parties refuses to "agree" on a discovery plan. The Master concludes that the court has the authority under Rule 1.04 (1.1) to impose a Discovery Plan upon an unwilling party.

Osprey Capital Partners v. Gennium Pharma Inc., 2010 ONSC 2338 (CanLII) Date: 2010-04-26 Docket: 07-CV-340006PD1 Master Glustein. Starting at para 41, the Master discusses what is covered in a discovery plan, and states that the plan does not need to identify key documents or issues for examinations for discovery. Rather, the purpose of the discovery plan is "is to ensure that counsel meet promptly to attempt agree on the "plan" that will govern the discovery process; i.e. the extent of documentary production required, the anticipated timing and length of the examinations for discovery, and the names of the persons intended to be produced for examinations for discovery." (Editor's note: might be a problem of terminology, since standard practice in e-discovery is to agree on names of key custodians - i.e. those sources most likely to yield relevant information.)

Hollinger Inc. (Re), 2012 ONSC 5107 Date: 2012-09-12 C.J. Campbell J. The problem requiring a proportionate solution is briefly stated in para 86 "(p)art of the opposition by Black and others to the elimination of the Settling Defendants from the action is the prospect that Affidavits of Documents would not have to be produced. That is why the Non-Settling Defendants urge that even if the settlements are approved that at least Torys & KPMG be required to produce an Affidavit of Documents as if they remained as defendants." KPMG and Torys proposed protocols that the Court included in its order as Appendix A following para 116.

Kaladjian v. Jose, 2012 BCSC 357 Date: 2012-03-12 Davies J. Review of a Master's refusal to order productions of the plaintiff's MSP records under R. 7-1(18) in a motor vehicle injury case. "[97] If what was challenged by the defendant was whether the plaintiff’s MSP records were “additional documents” that should be disclosed, the demand for production ought to have been made under Rule 7-1(11), and the application for production should have been made under Rule 7-1(14) where questions of whether the court should alter the test of relevance for document disclosure purposes and if so to what extent, could be addressed. That inquiry would include principles of proportionality."

Ornstein v. Starr, 2011 ONSC 4220 Date: 2011-11-29 Master Short. Behaviour of counsel for defendant in thwarting discovery attracts substantial indemnity basis in this decision on a motion ordering the defendant to answer questions in the Examination for Discovery.

Ontario v. Rothmans Inc., 2011 ONSC 2504 (CanLII) Date: 2011-04-26 Docket: 09-CV-387984. Perell J. Court sets aside a Master's decision that had concluded that the proportionality principle could have an expansive influence. The discussion starts at para 154, but the following will be important to large litigation-prone corporations: "[164] If adopted as a precedent, the Master’s approach of treating proportionality as having an expansionary influence destroys the parsimony of the proportionality principle and allows the argument that because a case is important or the claim large, there should be more procedure not less procedure. The proportionality principle would lose its utility for large cases, such as class proceedings and other public interest litigation, where justice can be done by reducing not expanding the procedure. The proportionality principles yields an “equality of arms” by arms reduction and is not meant to prompt an arms race. In my opinion, in this particular case, the Master erred in principle in his treatment of the proportionality principle."

Whitcombe v. Avec Insurance Managers Inc., 2011 BCSC 204 (CanLII) Date: 2011-02-21 Docket: S126569. At para 11, Master Caldwell orders wider production based on this reasoning: "In my view, where, as here, the issues go beyond negligence and involve opposing allegations of misfeasance, proportionality must be interpreted to allow the parties a wider, more Peruvian Guano type disclosure in order to defend and protect their respective professional reputations and abilities to carry on in the business community."

Warman v. National Post Company, 2010 ONSC 3670 (CanLII) Date: 2010-08-16 Docket: 08-CV-00352197SR Master Short. In this defamation and libel case, the defendant asks for production of the plaintiff's hard disk so that it can prove that the plaintiff himself had planted racist and misogynist messages on a NeoNazi website. Given that the suit was brought under Rule 76 (The Simplified Procedure) and the breadth of the request, the Master analyzes the proportionality principle as it is applied to discovery as well as the new rule related to discovery planning. Applying both proportionality (para 114) and the limitation on the scope of discovery in libel cases (from para 123), the Master agrees that a forensic examination of the hard disk be made on a mirror copy by an independent computer expert. (para 161) looking for limited information as he specifically directs.

Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar RT, 2010 ONSC 4070 (CanLII) Date: 2010-06-22 Docket: 06-CV-312174 Master Short. At para 71, the Master applies the proportionality principle to productions. "While I am not being critical of counsel in this specific case, I do however take this opportunity to express my view in general that in cases of this nature the new rules put an onus on counsel, in situations such as this, to not use electronic production to gain tactical advantage. The requirement, in part arising from the "equality of arms" component of proportionality, does not mean that a party need provide a computer system to their opponents, but they do need to work together to facilitate the exchange of information and a practical production and exchange of the "bibliographic data" attached to their productions."

GRI Simulations Inc. v. Oceaneering International Inc., 2010 NLTD 85 (CanLII) Date: 2010-04-26 Docket: 200401T1376 Lois R. Hoegg J. In an $8 million suit, the Defendant seeks to be relieved of its obligation to search the e-mail stores of 12 custodians using an agreed-upon set of search terms. The court uses a proportionality analysis to weigh the relative cost and effort against the benefit to the plaintiff and dismisses the application. At para 32 the Court states that the Applicant (defendant) "has the burden of satisfying the court, on a balance of probabilities, that it is just to relieve them of their duty to produce any further email in accordance with the Consent Order." The Defendants' application for relief from email document production is dismissed. They were unable to show that the cost, time and effort involved in producing email which relates to matters in issue is so onerous as to relieve them of their obligation to produce it in accordance with Rule 32.02.

Bell ExpressVu Limited Partnership v. Heeren, 2010 ONSC 665 (CanLII), Date: 2010-01-27 Docket: 07-CL-6981. Marrocco J. Plaintiff moves for for an order compelling the defendant, Wilhelmus Heeren, to further review the contents of computer hard drives which are in his possession, control or power, and to again search for and identify relevant documents. In addition, the plaintiff seeks an order requiring Wilhelmus Heeren to deliver a further and better affidavit of documents.The plaintiff had executed an Anton Piller Order, and in the absence of objections or claims of privilege, was given a copy of the disk for searching and found a number of documents that the defendant had not listed on his affidavit. The court points out that the plaintiff has all the documents (i.e. has a full copy of the disk), so there is no need for the defendant to produce any further affidavits of documents or productions. The court dismissed the motion. See here for Dan Michaluk's summary.

Sherman v. Gordon, 2009 CanLII 71722 (ON S.C.) Date: 2009-12-16 Docket: 06-CV-310875PD1 Master Haberman. "The Court has been equally concerned where court time has been sought and then squandered. The concept of proportionality has to apply in the context of litigants' use of court time as well as to the expenditure of their funds. It is unfair to all users of the court where one party seeks far more court time than they should need because they are not prepared to do the work to streamline their motion. Court intervention should be reserved for situations where the parties are unable to resolve their differences inter se. If they expend no effort in resolution but simply present the court with their problems, we will soon find we are unable to provide our services in a timely fashion."

4145356 Canada Limited v. The Queen, 2009 TCC 480 (CanLII), Date: 2009-09-28 Docket: 2008-2315(IT)G . Campbell J. Miller J. In this tax matter, the respondent (the Crown) asks for "any correspondence, emails and other documents exchanged between the Bank of America group and the Royal Bank of Canada group in connection with the discussions and negotiations leading to this transaction". "The Appellant has concerns that this email discovery will be time consuming, is far too broad, and at best, may only produce some evidence of subjective intention..." (which is not admissible). The court recognized that the request was not a fishing expedition, but narrowed the ambit of the request to the four key players, two at each bank, for the 6 month period during which the appellants were in email negotiations.

Marcotte v. Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R. 65. 2009-10-08 "What is clear from these different sources is that the purpose of art. 4.2 C.C.P. is to reinforce the authority of the judge as case manager. The judge is asked to abandon the role of passive arbiter. At first glance, this case management function does not mean that it would be open to a judge to prevent a party from exercising a right. However, the judge must uphold the principle of proportionality when considering the conditions for exercising a right." (para 67)

Pearson v. Inco Limited, 2009 CanLII 37928 (ON S.C.) 2009-7-10 Cullity J. In his decision to grant in part a motion to compel answers to numerous questions, the court weighed various factors in concluding which answers to compel, and that the party demanding the answers should pay the costs of the expert required to answer them. The court quotes with approval Master MacLeod's January 21, 2008 decision in Yvonne Andersen v. St Jude Medical (Court File No.: 00 - CV - 195906 CP)., "Of course discovery remains a court supervised process in which the Rules provide the default position or starting point. The court has discretion to either expand or restrict discovery and production in appropriate cases. At the risk of over generalising, it is fair to say that discovery will be expanded if necessary to gain access to critical and probative evidence and it will be restricted if technical application of the rules will result in onerous and expensive production out of all proportion to the particular issue. In the case of electronic data, a liberal dose of collaboration and common sense may go a long way." The court also quotes Master MacLeod's 2003 decision in 1176560 Ontario Limited v. The Great Atlantic & Pacific Company of Canada Ltd (captured in this digest).

1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd., 2003 CanLII 21408 (ON S.C.) Master MacLeod discusses the exercise of discretion by the court to control the discovery process in paragraphs 11 and 12. "Control of the process by the court may take different forms. Firstly, even relevant inquiries may be restricted if they are unduly onerous or abusive. Secondly, the court may direct that the party requiring discovery or production that appears to be relevant but not essential shall pay the cost. Thirdly, in complex cases, it may be necessary to provide for managed production and discovery where the court plays an active ongoing role in managing the process. In the latter situation, it may be necessary to examine the information uncovered by a particular level of production and to refine the issues in dispute before determining if a more detailed level is required. It may even be necessary to put the parties to certain elections concerning their position at trial before determining the extent of production or discovery."

Bishop v. Minichiello, 2009 BCSC 358 (CanLII), 2009-4-7, T.J. Milnick J. Defense seeks production of the hard drive on the plaintiff's computer for the purpose of isolating and producing information to determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning each day. The court noted that the computer was used by all members of the family and not just the plaintiff, so there are privacy issues to consider, and that an order for the production of the entire drive would essentially be an order for a search (para 49). "The information sought by the defence in this case may have significant probative value in relation to the plaintiff's past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents. Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff's life. In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege. For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff's family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case. I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed." (para 57) See also Bishop v. Minichiello, 2009 BCCA 555 (CanLII), 2009-12-08, where the court dismissed the application for leave to appeal the decision narrowing the scope of the search of the computer - applicant had originally sought Hotmail and website activity as well as Facebook.

Air Liquide Canada Inc. v. Ferus Inc., 2009 ABQB 280 (CanLII), 2009-05-06, A.G. Park J. Plaintiff claims that financial records sought by the defendant relate to tertiary lines of inquiry and are of marginal probative value, and that disclosure could prejudice the business interest because the defendant is a competitor. The court recognized that "(a)n overly broad financial disclosure order could lead to substantial prejudice to Air Liquide which can be out of all proportion to any relevance that disclosure might have to the issues in the action." (para 25) However, it decided "(the) questions proposed by Ferus are relevant, material and directly related on a secondary relevance basis to the damage claims advanced in the pleadings. Ferus has met its onus of proving it requires the following specific information in order to resolve the issue of Air Liquide's alleged damages." (para 33) To guard against possible prejudice to the plaintiff, the court granted a confidentiality order or sealing order.

B.C. Bottle Depot Association v. Encorp Pacific (Canada), 2009 BCSC 403 (CanLII), 2009-02-13, S. Griffin J. Citing both Murao and Stephen, the Court ordered production of the sought-after documents, finding that the probative value of those documents outweighed any confidentiality or privacy concerns and that collection of the document would not be overly burdensome to the Defendant.

Stephen v. McGillivray, 2008 BCCA 472 (CanLII), 2008-11-19. D. Smith J.A. Interpretation of Rule 26(1.2. The court agreed with the respondent that the intention of the rule was "to provide an exemption from R. 26(1) where reasons of time, cost, efficiency and marginal relevance make it impracticable to rigidly apply the rule". Comparison to Rule 230 of the FCC: "On motion, the Court may relieve a party from production for inspection of any document, having regard to (a) the issues in the case and the order in which they are likely to be resolved; and (b) whether it would be unduly onerous to require the person to produce the document. Decisions interpreting the federal rule have excluded production of relevant documents in the interests of time constraints, efficiency, and marginal or no relevance: Apotex Inc. v. Merck & Co., 2002 FCT 626 (CanLII), 2002 FCT 626, 19 C.P.R. (4th) 460, and Eli Lilly & Co. v. Apotex Inc. 2000 CanLII 16043 (F.C.), (2008), 8 C.P.R. (4th) 413 (F.C.T.D.); aff'd 2001 FCA 141 (CanLII), 2001 FCA 141,12 C.P.R. (4th) 127. These considerations and others, including cost and volume of documents requested in relation to the issue to be determined, have also been considered in applications for exemption under R. 26(1.2). Mentions Murao v. Blackcomb Skiing Enterprises, 2003 BCSC 558 (CanLII), where the court refused the application for exclusion from production based on burden, reflecting that the seriousness of the plaintiff's injuries (he was now a quadriplegic) and the relevance of the information warranted its disclosure.

Innovative Health Group Inc. v. Calgary Health Region, 2008 ABCA 219 (CanLII) Date: 2008-06-11
Docket: 0701-0179-AC. Reasons for judgment reserved by Carole Conrad J.A. Appeal from an order by the case management judge to produce the imaged hard drives in specie and of drives containing the "hybrid" files (those patients whose care was partially funded by the CHR). The Court prefaced its analysis with a number of comments about the current state of electronic discovery: "The widespread use of computers for record keeping, communication and information storage has vastly expanded the breadth of potential discovery in litigation. Although technology is helpful in the sense that it makes fuller disclosure possible, it also creates an unfortunate paradox. The cost of sorting and producing all the relevant information in a party's possession may put litigation beyond the economic ability of a vast number of litigants. Thus, it is necessary to ask such questions as: How much discovery is enough? Do all cases justify the same type of disclosure? Should there be some rule of proportionality that governs production based upon the issues in the lawsuit? How is irrelevant and immaterial information protected from production in those situations where a court orders production of a hard drive for examination by an expert? Who pays the cost?" (para 23). The Court cited Section 6.1.4 of QB Civil Practice Note 14, which urges parties to consider "[T]he desirability of limiting search efforts for any category of Discoverable Records where these efforts are considered to be unduly burdensome, oppressive or expensive having regard to the importance or likely importance of this category of Discoverable Records to the proceeding." Finally, the Court refers to Sedona Canada Principle 2 on proportionality.

Kairos Community Development Ltd. v. Nova Scotia (Community Services), 2007 NSSC 330 (CanLII) Date: 2007-11-14 Docket: SH 265555. Suzanne M. Hood J. Dispute about service fees and rates. Plaintiff seeks production of "documentation related to the service fees and rates (including but not limited to administrative fees and mileage rates) that the Defendant has paid to other service providers who provide supervised apartments and group homes for persons with mental health and disabilities in Nova Scotia, for the period of 1998 to present." Question of relevance and burden to produce. The plaintiff says that this documentation is necessary in order for it to establish its loss and says therefore that it is clearly relevant. (para 20) Based upon the information before me, I conclude that the documentation with a semblance of relevance does not include documentation outside the so- called Central Region. (para 25) "It is perfectly clear that these documents, although stored in a disorganized fashion, are within the control of the defendant. I conclude that it is not unduly burdensome in all the circumstances of this case for the defendant to produce the documentation which I have concluded to be relevant. The plaintiff has no other way to obtain documentation which is critical to its case and should not be left without the opportunity to proceed with its lawsuit because of the fashion in which the defendant keeps its records. Nor do I conclude that this is one of those exceptional cases where the party requesting the documentation should pay for its production. If the records were kept in a different fashion, it would not be difficult to produce them. It is not the fault of the plaintiff that this is not the case." (para 44) "The defendant may be able to obtain it more easily from some of the service providers who may have kept their records, which would be smaller in number, in a more accessible fashion than those of the defendant. The possibility that this could occur does not affect the order which will flow from my decision, but it is an option that the defendant may wish to explore." (para 49) paras 29-33 outline burden.

Vector Transportation Services Inc. v. Traffic Tech Inc., 2008 CanLII 11050 (ON S.C.) Date: 2008-03-17 Docket: 05-CV-300129 PD2 Perell J. The defendant in a case about a wrongful solicitation of clients by a former employee has appealed a Master's order to produce the laptop he uses for work purposes to a forensic data recovery expert who would inspect the computer for e-mails containing names of the plaintiff's clients or customers. With $1 million at stake, the plaintiff requested the order because the defendant had not produced emails that the plaintiff could prove had been on his computer since he had been one of the recipients. Defendant claims these emails were not produced because they had been deleted. The defendant relies on Baldwin Janzen Insurance Services (2004) Ltd. v. Janzenand Desgagne v. Yuen to support the position that the Master had erred in his order. After reviewing Principle 2 of The Sedona Canada Principles (published January 2008), the Court decided that the plaintiff had produced evidence of the existence of relevant electronic information on the laptop and concluded that the Master had been correct to order its production for inspection. The Master's order asks for a highly targeted search of the recovered contents of the laptop, which also distinguishes it from the requests for the entire contents of a drive in both Baldwin and Desgagne. Furthermore, the plaintiff has agreed to pay for the work of the forensic data recovery expert.

Peter Scherle Holdings Ltd. v. Gibson Pass Resort Inc., 2007 BCSC 770 (CanLII) Date: 2007-05-31 Shabbits J. Plaintiff applied with mixed success for an order for further production. Paras 18-24 review the law of disclosure in BC, pointing to recent decisions where the court has used its discretion to limit discovery where the request has been too broad, too onerous, duplicative, or where the documents sought do not have significant probative value.

Contour Optik Inc. v. Viva Canada Inc., 2005 FC 724 (CanLII) 2005-05-19 Docket: T-1927-02 Richard Morneau Prothonotary. The Court quotes Reading & Bates Construction Co. et al. v. Baker Energy Resources Corp. et al. (1988), 24 C.P.R. (3d) 66, stating "Mr. Justice McNair, in a general six-point reminder, first defines, in points 1 to 3, the tests for relevance of a question or document, and then itemizes in points 4 to 6 a series of circumstances or exceptions in which, at it happens, at the end of the day, a question need not be answered or a document need not be produced." In particular, 4 says "The court should not compel answers to questions which, although they might be considered relevant, are not at all likely to advance in any way the questioning party's legal position"; 5 says "Before compelling an answer to any question on an examination for discovery, the court must weigh the probability of the usefulness of the answer to the party seeking the information, with the time, trouble, expense and difficulty involved in obtaining it. Where on the one hand both the probative value and the usefulness of the answer to the examining party would appear to be, at the most, minimal and where, on the other hand, obtaining the answer would involve great difficulty and a considerable expenditure of time and effort to the party being examined, the court should not compel an answer. One must look at what is reasonable and fair under the circumstances" (underscored by the Court); and 6 "The ambit of questions on discovery must be restricted to unadmitted allegations of fact in the pleadings, and fishing expeditions by way of a vague, far-reaching or an irrelevant line of questioning are to be discouraged". (underscored by the Court.)

Strata Plan LMS 3851 et al v. Homer Street et al, 2006 BCSC 1362 (CanLII) Date: 2006-09-08 Docket: S76792 J. Truscott J. "[17] Chief Justice McEachern in Boxer v. Reesor et al (1983), 43 BCLR 352, accepted that there must always be a reasonable limit to production of documents and a reconciliation between the right to full disclosure with the proper management of the trial process. Mr. Justice Myers in Desgagne v. Yuen, 2006 BCSC 955 (CanLII), 2006 BCSC 955, refers to it as a matter of common sense."

Farris v. Staubach Ontario Inc., 2006 CanLII 19456 (ON S.C.) Date: 2006-05-24 Docket: 03-CV-259605CM 3. Master Hawkins. "That is the cost side of a cost/benefit analysis of this motion. The benefits of the requested searches and documents relevance review seem to me to be minimal. No one can guarantee that the whole exercise will fail to turn up a single new relevant document. Having said that the plaintiff is, on the evidence before me, unable to identify a single relevant document which is apparently in the possession, control or power of TSC which it has yet to produce or which the proposed searches will reveal. The plaintiff does not submit that documents already produced point to the existence of a single relevant document which TSC has failed to produce." (para 23)

Baldwin Janzen Insurance Services (2004) Ltd. v. Janzen, 2006 BCSC 554 (CanLII) Date: 2006-04-06 Docket: S046775. M.A. Humphries J. This is an application to compel the defendant to produce a Supplemental List of Documents, listing his hard disk drives ("HDD") and a mirror image copy of those hard disk drives as documents in its possession. The plaintiff wants the mirror-image HDD produced to its own computer expert for a computer forensic analysis. "Without some indication that the application of the interesting technology might result in relevant and previously undisclosed documents, the privacy interests of the third parties and the avoidance of unnecessary and onerous expense militate against allowing such a search merely because it can be done." (para 36)

Trafalgar Industries of Canada Ltd. v. Pharmax Ltd., 2003 CanLII 40313 (ON S.C.) Date: 2003-04-28 Docket: 01-CV-207221SR Wilson J. Leading case on fixing costs under the Simplified Procedure. "This approach respects principles of proportionality and reasonableness. It recognizes an obligation of counsel to be sensitive and proactive with respect to cost issues. The Simplified Procedure is a halfway house between small claims and an ordinary procedure. Costs awarded must reflect these principles."

Murao v. Blackcomb Skiing Enterprises Ltd. Partnership, 2003 BCSC 558 (CanLII), 2003-04-10, J Sinclair-Prowse J. In this personal injury case, the plaintiff had been rendered a quadriplegic at the age of 17 while riding in the snowboard park at Blackcomb Mountain. Although the defendant had already produced all reports of snowboarding accidents that had occurred that year in the snowboard park, the plaintiff sought accident reports from several previous years. The defendant sought an exemption from this further production under B.C. Supreme Court Rule 26(1.2) . The Court recognized that the production sought would be costly and time consuming but decided this was outweighed by the relevance of the additional documents sought and the seriousness of the plaintiff’s injuries. In obiter commentary, the Court stated that it might have ruled differently had the plaintiff’s injuries been less serious. (summary courtesy K.Littmann)

Document Retention Policies

White v. The Queen, 2009 TCC 539 (CanLII) Date: 2009-11-09 Docket: 2007-1665(GST)G ; 2007-1561(IT)G B. Paris J. The lack of formal information management retention and destruction policies and procedures did not attract a finiding of spoliation, since the Appellant did not show how the missing information was relevant, how its absence would harm his case, or that the information was destroyed after litigation was contemplated.

Carleton v. Beaverton Hotel, 2009 CanLII 4245 (ON S.C.) 2009-2-6. Docket: 23745/03. Lauwers J. In a personal injury case claiming loss of income, the plaintiff has not produced evidence of income levels before and after the accident. Defendant moved to dismiss the action. "There are different views that can be taken of the allegations made by the defendants in this case. The first is that Mr. Carleton has deliberately avoided his record-keeping obligations and refused to comply with the Rules of Civil Procedure regarding the preservation and production of appropriate business records. The second is that Mr. Carleton is simply unable to do so. The third explanation is a combination of the first two, in which Mr. Carleton's possibly real inability is being used strategically. Each of these possibilities would best be explored through the trial process." (para 26)

Weber v. Erb and Erb Insurance Brokers Ltd., 2006 CanLII 9987 (ON S.C.) Date: 2006-03-31 Docket: 661/96 D.J. Gordon J. "[93] Ten years later, it is appropriate an adverse inference be drawn as to the failure to produce the documents results from the documents not supporting the plaintiff's position. [94] Further, the normal retention period for business records has now expired. There is a strong probability the February 1996 records no longer exist. The plaintiff offers no evidence to the contrary. Failure to produce, or even provide an explanation, supports such an inference. I so find. [95] Accordingly, I conclude there is actual prejudice to the defendant. Without these documents, at the very least, there is a substantial risk a fair trial will not be possible. The action is dismissed."

336332 B.C. Ltd. v. Imperial Oil Ltd., 2002 BCSC 587 (CanLII) Date: 2002-04-23 Docket: C963124 Parallel citations: 6 BCLR (4th) 168. C. Ross J. A claim for contamination of a site formerly occupied by gas stations. At para 46, the court points out "(w)ith respect to the nature of the claim, this case concerns a latent problem which, by its nature, is likely to emerge only years after the initial contamination." The courts goes on to say "the nature of such cases, suggests to me that commercial prudence would dictate the adoption of document retention policies that preserve the means of investigation of claims."

Inform Cycle Ltd. v. Rebound Inc., 2007 ABQB 319 (CanLII) Date: 2007-05-16 Docket: 0501 02030. D. L. Shelley J.C.Q.B.A. In seeking return of $1,500 he believed the Plaintiff, his former employer, still owed him, an employee of the Defendant used the Defendant's internet connection and computers to register "inform cycle" as a domain name and then redirected it to a pornographic site. Question of whether Defendant is liable for employees actions. Notes in passing that Defendant does not have a written internet policy.

Holtby, Re, 2011 ABASC 622 Date: 2011-12-13 The Applicants argued that the Disclosure Database has not been coded in a manner allowing for efficient and effective searching of those – and only those – disclosed documents of relevance to each of the Respondents. Commissioner ordered staff to code the disclosure database according to the Default Standard in Court of Queen's Bench of Alberta Civil Practice Note No. 4 Guidelines for the Use of Technology in any Civil Litigation Matter dated 1 March 2011 ("Practice Note 4").

Gamble v. MGI Securities, 2011 ONSC 2705 (CanLII) Date: 2011-04-29 Docket: 06-CV-322038PD1. Master Sproat. In an action that has been "tenaciously prosecuted and defended" (in the words of the master), one of the discovery disputes relates to electronic production. Defence counsel had delivered 19,680 documents on 4 DVDs, of which the plaintiff complained were not in the "normal" format created and used by the defendant, and of which only 887 were relevant. The defence offered to provide the electronic production for half the cost of the preparation of the Summation database. The court concludes "on the basis of the lack of timeliness in the objection and the Sedona (Canada) principles, that it is appropriate to impose upon the defendant the initial and interim costs of production pending the outcome of the action. In my view(sic), much of the issues raised in the motion in terms of whether documents have been “dumped” or were of “peripheral” relevance will be clarified in the litigation." As to the $68K cost of the production, the court points out that the plaintiff had had no input into the search terms used to select the material originally collected or how it was culled before review.

Guestlogix v. Hayter, 2010 ONSC 4384 (CanLII) Date: 2010-08-08 Docket: 10-CV-400356 D.M.Brown J. Extracts from the court's case management memorandum describing what information is needed to assess the burden of production in the required format: "(i) is the data sought by the plaintiff available in the format sought? (ii) why does the plaintiff require production of the data in the format sought? and (iii) what, if any, undue burden would be imposed on the defendants to produce the data in the format sought? The parties must appreciate that my consideration of the request will be informed by the general principle of proportionality (Rule 1.04(1.1)), as well as the more specific principles of proportionality applied to electronic discovery through the Sedona Canada principles (Rule 29.1.03(4)). Their materials should address those principles." The court adds that the plaintiff must serve and file a Proportionality Chart - Document Production in the format set out by the Ontario E-Discovery Implementation Committee available here.

Apotex Inc. v. Richter Gedeon Vegyeszeti Gyar RT, 2010 ONSC 4070 (CanLII) Date: 2010-06-22 Docket: 06-CV-312174 Master Short. In this $100 million suit, the plaintiff complained of deficiencies in the form of the defendant's productions. See para 35 for description. The Master discusses Mega-Case Productions in the Twenty-First Century starting at para 55.

Canadian National Railway Company v. Western Grain Cleaning & Processing Ltd., 2010 SKQB 59 (CanLII) Date: 2010-02-12 Docket: Q.B.G. No. 1455 of 2008 Currie J. At para 23, the court describes the problem with the defendant's statement as to documents. It is a list of 96 items or groups of documents, comprising some 19,000 documents originating in paper. Because the documents are paper, the broad test of relevance applies, although the court observes at para 27 "It is a rare case, though, in which more than a small fraction of such documents relate to issues in the litigation on more than a background level." Going on at para 28, the court says: "For its document disclosure to be effective, Western Grain must provide a more detailed description of its documents, so that CNR will be able to understand what the documents are about, and can identify them in the future. Western Grain may do so in one of two ways. It may provide a more detailed description of all 19,000 of its documents, in the normal way. Alternatively, Western Grain may provide a more detailed description of only those documents that, in Western Grain's best estimation, actually relate to issues raised in the pleadings, in contrast to those documents that Western Grain has disclosed because of the scope of the broad relevance test."

Adroit Resources Inc. v. Tres-Or Resources Ltd., 2008 BCSC 1211 (CanLII) Fenlon J. Application for further production in a case involving a dispute between two public mining companies that share an interest in mineral claims in the Temagami District of North Eastern Ontario. In particular, the plaintiff seeks electronic copies of Tres-Or's 1,600 emails and other documents which have already been produced by Tres-Or in TIFF format. Tres-Or seeks the electronic versions because of a concern about the authenticity of the documents produced based on plaintiff's admissions of doctoring and fabricating invoices. Tres-Or argues it would have to redo the work because it used TIFF format copies of its documents to review for privilege, duplicates and irrelevant documents. The Court held that it "it is not appropriate to order Tres-Or to produce electronic versions of all of its documents. Emails documenting the process of apparent doctoring and fabrication of invoices have been produced by Tres-Or. The plaintiff therefore has the evidence it needs to prove fabrication from the hard copies produced by Tres-Or. This does not appear to be a case in which a party is trying to cover up its conduct. (para 80) With regard to electronic version of other information, the Court ordered production of spreadsheets and survey data in electronic form since it would be assistance to the experts in preparing reports.

Andersen v. St. Jude Medical, Inc., 2008 CanLII 29591 (ON S.C.) Date: 2008-01-21 Docket: 00-CV-195906CP Master Calum MacLeod. This is another in a series of rulings relating to production and discovery issues in this certified class proceeding....This portion of the motion is essentially a request that the defendants produce better copies of the electronic documents and if necessary permit their expert to inspect the original data. Subsequent to the ruling in September 2006, the defendants produced additional data sets in redacted format. N.B. databases are maintained at the University of Pittsburgh under contract with the defendant....The plaintiffs are frustrated with the pace of production and with what seems to them to be proxy objections from the university permitting the defendants to avoid full compliance. Good discussion of discovery and production of electronic information in databases in paras 23-29, including references to The Sedona Canada Principles. In para 31, the court proposes four criteria that must be met so that the plaintiff is on a level playing field. Dan Michaluk summarizes the case here.

Shekdar v. K&M Engineering & Consulting Corp., 2007 CanLII 57814 (ON S.C.) Date: 2007-11-20 Docket: 03-CV-246488CM3 Master Sproat. The parties disagreed about how the electronic information was to be produced. Plaintiffs objected to defendant's proposal that the electronic data be made available via the internet because it would inhibit the unfettered ability to test and analyze the electronic data without the defendants having the ability to monitor such steps. The plaintiff preferred that the electronic data be produced via a memory stick. The Court agreed "that the plaintiff is entitled to conduct its testing and analysis as it sees fit and without any monitoring by the defendants. In my view, such monitoring would destroy the plaintiff's entitlement to protect his litigation strategy." (Not clear whether the defendant had proposed to host a website containing the electronic data. Presumably the use of the internet to transfer the data would not pose the same risks. PD)

Tarapaski v. Tarapaski, 2007 ABQB 286 (CanLII)2007-5-2 Justice J.B. Veit. Subsequent to the court-ordered seizure of third party electronic records by the Monitor, this decision deals with objection that the documents had not been listed in the affidavit of documents. A large volume of information was produced. Discussion of limiting production only to documents that are both relevant and material. Court notes in para 3 that "At this time, Alberta does not have rules on electronic discovery of documents."

Thomson v. Berkshire Investment Group Inc. et al., 2007 BCSC 50 (CanLII) Date: 2007-01-10 Docket: S053413. R.B.T. Goepel, J. Lists of documents when large volumes of information are involved. Claiming privilege on groups of documents. Cites Blank on the distinction between litigation privilege and solicitor-client privilege. Cites Lowry J. (as he then was) in G.W.L. Properties Ltd. v. W.R. Grace and Co. (1992), 14 C.P.C. (3d) 74 (B.C.S.C.) at ¶ 23: "It is not always possible, nor desirable, that documents be listed individually by date as the plaintiff wishes in this instance. Sometimes, when large volumes of documents are produced, a more worthwhile description can be achieved by grouping documents, or files of documents, that relate to a particular subject, or time period, or geographical location of origin or some other relevant common ground. Groupings of documents may, in some circumstances, be quite large. What is important is that the list provide the party seeking discovery with a meaningful, reliable and complete disclosure as well as an effective aide to retrieving the documents when an inspection is conducted. What is required in each case depends on the nature of the documentation that must be described. In my view, the ingenuity of counsel in the approach taken to drawing a list of documents that serves the purpose of the rule is an essential element of the discovery process, at least in the conduct of complex commercial litigation that involves large volumes of documents generated from a variety of different sources over a period of many years as in this case." (para 69) (Italics P.D.)

Andersen v. St. Jude Medical Inc., 2006 CanLII 31906 (ON S.C.) Date: 2006-09-15 Docket: 00-CV-195906CP. Master MacLeod. "The plaintiff seeks access to the SAS database in its native format. This is the database maintained by the University of Pittsburgh utilizing popular software used in clinical studies. ... It has not been demonstrated if and whether the porting to Excel is accurate or complete. The plaintiff's expert has access to the SAS software and wishes to have the data in native format in order to perform his own analysis. Unlike many data bases which mix relevant and irrelevant information there is nothing in the AVERT data base that is not relevant. ... I accept the request of the plaintiff as a reasonable one. A database is a document under our rules and therefore the data is to be transmitted to the plaintiff's expert in its native format. Counsel should confer about how to ensure forensic continuity so that there is no doubt the copy is complete and accurate."

JDS Uniphase Inc. v. Metconnex Canada Inc., 2006 CanLII 34432 (ON S.C.) Date: 2006-10-16 Docket: 05-CV-31806. Master Beaudoin. In this case the parties attempted to comply with (i.e. the Ontario eDiscovery) guidelines in that they discussed the method of exchanging and producing documents in an electronic format. There was an agreement to this effect reached by the parties on the 12th of December 2005.... Notwithstanding the Plaintiffs' efforts to produce documents in a common format the Defendants identified deficiencies in the Plaintiffs' Summation database. Numerous e-mails were exchanged between the parties and their common document-processing company. After some time, an agreement was reached where the Plaintiffs would produce its Summation database with same level of functionality as that of the Defendants (e.g. including the metadata). There was an increased cost in the amount of $26,983.46. The Defendants paid one half of that cost and now seek to have their share reimbursed. (para 8 and 9). Discussion of cost splitting.

Sycor Technology Inc. v. Kiaer, 2005 CanLII 46736 (ON S.C.) 2005-12-15 Docket: 04-CV-264018CM 2. Master Calum U.C. MacLeod. Production of documents from electronic sources by the plaintiff, where the cost of printing and photocopying the documents will exceed $50,000. Suggestion of using electronic production and possibly computer experts to identify what exists and what is truly relevant to the issues that are actually in dispute. Parties are to meet and discuss the method and cost of production. First cite of Ontario eDiscovery Guidelines. Reference to the eDiscovery issue of LAWPro magazine.

CIBC World Markets Inc. v. Genuity Capital Markets, 2005 CanLII 3944 (ON S.C.) Date: 2005-02-16 Docket: 05-CL-5690;05-CL-5716. J. M. Farley J. "I would expect that the sooner all counsel sit down together to map out a litigation schedule, the better off all parties will be. I would request counsel to jointly advise me of a target date for that schedule to be provided to me. The court expects counsel/parties to work out problems/difficulties as quickly and reasonably as possible and in a practical way while not infringing on anyone's true rights. If for some valid reason something cannot be accomplished in that regard, counsel should attend upon me at a convenient 9:30 appointment or at a case conference."

Process for review of electronic documents for relevance and privilege

Liquor Barn Income Fund v. Mather, 2011 BCSC 618 (CanLII) Date: 2011-03-25 Docket: S088378. Fenlon J. Among the issues dealt with by the court is the motion requiring the plaintiffs to disclose the search parameters they used to filter a massive amount of electronic data to identify relevant electronic documents. The court summarizes the plaintiff's approach starting at para 68. The court discusses the Sedona Canada Principles and the problem where the search terms used may reveal counsel's approach or theory of the case. The court allows that search terms are producible, but only where disclosure by the opposing party has been inadequate. In this case the defendants did not identify any deficiencies or missing categories of documents and the court concludes the the plaintiff does not have to disclose the search terms.

Air Canada v. Westjet Airlines Ltd., 2006 CanLII 14966 (ON S.C.) Date: 2006-05-06 Docket: 04-CV-266629CM2. Nordheimer J. "This motion raises the relatively new issue of a party's obligations regarding the production of electronic documents or "e-discovery" as it is sometimes referred to. Specifically in this motion, the plaintiffs seek an order: (i) confirming that if any privileged documents are inadvertently produced by the parties during its document production, such productions will not constitute a waiver of privilege, and; (ii) confirming that if documents are produced by the parties during the document production process, such production will not constitute an admission of the relevance of all or a portion thereof." Motion was dismissed. Discussion includes references to the American Sedona Principles and the Ontario eDiscovery Guidelines.

Descartes v. Trademerit, 2012 ONSC 5283 Date: 2012-09-19 Master MacLeod. The parties had agreed to the forensic analysis of the defendant's hard disk without specifying what they meant by forensic analysis, or who would do the analysis. A duplicate copy of the hard drive was given to plaintiff's counsel who proceeded to search for documents. The issue of privileged documents and the process for dealing with them had not been worked out and the parties couldn't agree, so the court was asked to provide direction.

Universal Sales, Limited v. Edinburgh Assurance Co. Ltd., 2009 FC 151 (CanLII) Date: 2009-02-12 Docket: T-1148-01. Russell J. A motion to appeal and reverse the decision of the prothonotary concluding that a document inadvertently released was privileged and had to be returned to the plaintiff. "As the Plaintiffs point out, the mere physical loss of custody of a privileged document does not automatically end privilege, especially in the context of modern litigation where large quantities of documents, such as the electronic production of a CD in this case, are exchanged between counsel and accidental disclosure is bound to occur from time to time. In this case, there was neither knowledge on the part of the Plaintiffs when the CD was produced to the Defendants, nor any silence when the Plaintiffs learned of the inadvertent disclosure at the discovery." (paras 28-29)

Eizenshtein v. Eizenshtein, 2008 CanLII 31808 (ON S.C.) Date: 2008-06-26 Docket: 20570/05. Wildman J. "A woman sees e-mails between her boyfriend and his solicitor about strategies to use in the divorce battle with his wife. When she and her boyfriend break up, the woman provides copies of the e-mails to her boyfriend's wife. Can the e-mails be filed as part of the wife's affidavit in the divorce proceedings?" (para 2) "We live in an interesting time. The electronic age creates communication problems never contemplated when the law of solicitor-client privilege was first developed. Identity theft, electronic fraud and computer "hacking" are ever-present concerns. More and more information is prepared and communicated electronically, often with no security protection, sometimes only with the protection of an often used or easily guessed password. Information from one computer can be accessed from computers at another location, even on the other side of the world. Much of a person's private information is now stored on a computer, often with a right of access to the computer by other members of the person's household or business, who also have need to use the same machine." (para 41)

R. v. David M. DALEY, 2008 NBPC 29 (CanLII) Date: 2008-06-02 Judge Alfred H. Brien. Motion to exclude evidence stored on a hard disk seized by CRA in the course of an investigation of tax evasion. The hard disk included information related to another company that would subsequently be investigated by CRA under a separate warrant (Pine Crest), as well as that covered under the original warrant (Nautica). In granting the motion, the court observed that "the CRA did not take the necessary precautions, after reviewing and determining that they had seized documents to which they were not entitled , to return the documents and protect them from misuse. In this case the CRA agents actually copied and used the documents there after, constituting another breach." (para 46) "In all there was a clear violation of the Accused's section 8 Charter Rights." (para 47) The court acknowledged that "given the nature of storage of computer records and the process of identification and retrieval, seizure of a computer hard drive could inadvertently effect seizure of documents outside the time frame specified in the warrant." (para 31) "However, seizing agents must be mindful both of the potential for intermingled documents in computer searches and the need to exercise discretion in protecting documents seized in such manner." (para 32) Dan Michaluk has a nice summary here.

Trafford Holdings Ltd. v. Batchelor, 2007 BCSC 58 (CanLII) Date: 2007-01-12 Docket: 06 3526. B.F. Ralph J. Implementation of six factors mentioned in Celaneseto determine if counsel should be removed in a case where the solicitor had been present during the execution of an Anton Piller order and had seen materials that were privileged. The court concluded that they wasn't sufficient evidence that the plaintiff's solicitors had received privileged information during the search and the application was dismissed.

Chan v. Dynasty Executive Suites Ltd., 2006 CanLII 23950 (ON S.C.) Date: 2006-07-17 Docket: 02-CV-223930 CM3. Belobaba J. In a case alleging fraud, conspiracy and breach of fiduciary duty, the defendants moved for removal of plaintiff's counsel. Defendants had inadvertently included privileged documents in their production set and notified plaintiff's counsel as soon as they became aware. Plaintiff's counsel refused to return the documents despite repeated requests, saying in the first instance that the documents weren't privileged and in any case, any privilege had been waived. Court ruled that the firm be removed as the solicitor of record for the plaintiff.

Dublin v. Montessori Jewish Day School of Toronto, 2006 CanLII 7510 (ON S.C.) 2006-03-15 Docket: 04-CV-277495CM2. Master Carol A. Albert. The issue is whether an email communication over which Montessori Jewish Day School of Toronto and the other defendants ("Montessori") claim privilege, and which was inadvertently produced to the Dublin plaintiffs ("Dublin"), ought to be returned and treated as a privileged communication. An issue was that the email was printed from an account other than the original recipients, raising the question of whether privilege had been waived because information had been disclosed to someone else. "The fact that an email from Ms Nashman to Mr. Steinberg was printed from her husband's account does not mean that it was read by him any more than letter mail addressed to her and placed in the home's mail slot would be opened by Bruce. There is insufficient evidence to find that Bruce read the email." Motion for the return of the document inadvertently produced was granted.

Costs of eDiscovery

Borst v. Zilli, 2009 CanLII 55302 (ON S.C.), 2009-9-23. Master Ronna M. Brott. The parties reached an agreement wherein: the parties would retain an independent computer consultant ("ICC") who would obtain a copy of the computer data ("the image"); an independent solicitor ("ISS") would review the documentation for relevancy and privilege; and the ICC would provide the defendants with a copy of the documentation, to be provided to the plaintiffs. The parties disagreed about who should pay for the ICC and the ISS: the defendants assert that the plaintiffs should pay because they are seeking the information, while plaintiff seeks to share the costs. Recognizing the proportionality principle to ensure that the costs of discovery do not unduly interfere with a just, speedy and inexpensive resolution of a dispute, and drawing on analogy to Rule 32, the court ordered the plaintiff to pay for the ICC, and that the costs for the ISS be split between the parties.

Barker v. Barker, 2007 CanLII 13700 (ON S.C.) 2007-4-24 Justice Cullity. Plaintiffs claims relate to the treatment they received between 1965 and 1983 as residents, and patients, at the Oak Ridge maximum security division of the Mental Health Centre at Penetanguishene during the administration of programs allegedly conducted by the defendants under the supervision of the Crown (province of Ontario). Defendants propose to image and code the medical records, some 50,000 to 100,000 double-sided documents, and make the electronic collection available to the plaintiffs. The defendants moved for orders requiring the plaintiffs to pay one-third of the cost of scanning, and coding, the documents - the other two-thirds to be borne equally by the Crown and the defendant physicians. The motions were opposed by the plaintiffs. The court agreed that the benefits to the plaintiffs justified an order for the sharing of the costs of conversion.

JDS Uniphase Inc. v. Metconnex Canada Inc., 2006 CanLII 34432 (ON S.C.) Date: 2006-10-16 Docket: 05-CV-31806. Master Beaudoin. In this case the parties attempted to comply with (i.e. the Ontario eDiscovery) guidelines in that they discussed the method of exchanging and producing documents in an electronic format. Plaintiff and Defendant shared the costs, and Defendant applied to have their half recovered. Master Beaudoin declined, stating that costs would be settled at the end. "[14] To require the Plaintiffs to reimburse these costs I would require additional information with respect to the long-term benefits of producing the electronic database in the enhanced format. This is not a case where either of the parties is unable to bear the costs of this litigation which will no doubt be complex and expensive. In order for me to make the interim cost award sought, I would require clearer evidence that the production of the database in the revised format was of benefit to both parties in the litigation or to the court or that the costs of the electronic production resulted in a disproportionate burden for one of the parties."

Consorcio Minero Horizonte S.A. et al v. Klohn-Crippen Consultants Limited et al, 2005 BCSC 500 (CanLII) Date: 2005-04-05 Docket: S006413. T.J. Melnick, J. While not dealing with cost-shifting for electronic discovery, this case does deal with an analogous situation. The plaintiff is a Peruvian mining company; the defendant is a British Columbian company that controls its subsidiary in Peru. Defendant complains that plaintiff has been dilatory in producing documents. Plaintiff objects that much of the financial information sought in the demand for further production is only of marginal relevance, but in para 31 the Court agreed that the documents were potentially relevant. "The plaintiffs concede that they have in their possession or control a substantial number of financial documents (approximately 300,000 "backup accounting documents", some of which were apparently used to generate financial statements which have been disclosed). The plaintiffs submit that the cost of producing this financial information will be close to $16,000. The plaintiffs are prepared to produce all of this information upon payment by the defendants in advance. Alternately, the plaintiffs propose that they will make the documents available for inspection in Peru by the defendants and their experts." (para 13) The court concluded "Certain financial records are to be examined by representatives of the defendants in Peru or provided for inspection in Vancouver upon the defendants providing security of US $16,000." (para 36).

Wenzel Downhole Tools Ltd. v. National-Oilwell Canada Ltd., 2011 FC 1323 Date: 2011-11-29 Snider J. A patent dispute about a bearing assembly intended for use in the drilling of oil and gas wells. Plaintiff applied for a patent in October 1990. Defendant proves that their use of the bearing assembly in dispute pre-dated the patent, based on metadata associated with a CAD file stating that the drawing was created in September 1989 (para 111).

Frangione v. Vandongen et al., 2010 ONSC 2823 (CanLII) Date: 2010-05-18 Docket: 04-CV-2573CM Master Lou Ann M. Pope. In this motor vehicle personal injury case, the defendant sought information from the plaintiff's computer about the amount of time actually spent on the computer. The defendant asked for a forensic copy of the hard disk so that its forensic expert could look for the system metadata cataloguing usage activity. The discussion starts at para 64.

Hummingbird v. Mustafa, 2007 CanLII 39610 (ON S.C.) Date: 2007-09-19 Docket: 06-CV-304092PD1 Master Sproat "While there was no evidence as to the precise nature of metadata, it seems to me that metadata is "data and information in electronic form". Hummingbird has determined that certain of the documents located on the hard drive and certain of the metadata was relevant. In my view, once Hummingbird has determined that a particular document is relevant, the metadata in relation to such document should be produced. In my view, the metadata is akin to a "time/;date stamp" affixed to a letter or the "fax header" that indicated the time/date of faxing and receipt." (para 9)

Veltheer v Prachnau et al, 2007 BCSC 511 (CanLII) Date: 2007-03-15 Docket: M042197. J. Sinclair Prowse, J. Deleted material may still need to be produced if it is relevant. "With respect to the documents that are filed in the electronic devices and/or the computers, the Plaintiff may find the material of the Defendant to be very helpful, as it is explained as to what in fact is in the possession or under the control of a person having such electronic devices or computers. That is, documents are still possessed and in control even though they may have been deleted, or they thought they had been deleted, from the hard drive." (para 10) (Italics P.D.)

Desgagne v. Yuen et al, 2006 BCSC 955 (CanLII) Date: 2006-06-21 Docket: M040544. Myers J. In a motion the Defendants seek production of the the hard drive from the plaintiff's home computer for analysis by an expert. The court addresses the question whether metadata (sic) is a document. "The information being sought does not fit the ordinary or intuitive concept of a document, electronic or otherwise. What is being sought by the defendants is a report of recorded data (i.e., the metadata) that is generated by computer software. That data is not something created by the user, but it is based on what the user does with her software. It is not something that has content in the same sense as a document file generated by the user, for example, a word processing document or spreadsheet. Nor is it something which is printed out or emailed in the ordinary course. The assistance of an expert is required to generate the metadata report. In spite of this, it appears clear that the metadata is "information recorded or stored by means of [a] device" and is therefore a document under Rule 1(8)." (para 29)

Ireland v. Low, 2006 BCSC 393 (CanLII) Date: 2006-03-10 Docket: S0014950. B.M. Joyce, J. Nice description of "deleted" information: "[7] I am also satisfied that the mere "deletion" of a computer file by the computer user does not remove the electronic data. It removes the operating system pathway that allows retrieval of the document by the user employing the computer's operating system. Eventually the data may be "overwritten" as new data is stored in the sectors that stored the original data but until this is done a person with the necessary skill can retrieve the "deleted" data using software programs for that purpose."

Robertson v. Edmonton (City) Police Service (#9), 2004 ABQB 243 (CanLII) 2004-03-29 Docket: 010316123 Frans F. Slatter J. "There is little authority on whether drafts are automatically producible in an ordinary civil context when the final document is producible. The production of the final version presumes that the final document is material, relevant and not too remote to the issues. The test must be whether the draft is also relevant and material, which must in turn depend on whether some relevant inference can be drawn from the differences between the draft and the final version. In some cases the draft might be relevant itself, as when it discloses that the party knew something, or when it first knew that fact. Here it is suggested that differences between the various drafts will be relevant." (para 60)

Social Media and Internet Information

A.B. v. Bragg Communications Inc., 2012 SCC 46 Date: 2012-09-27 Abella J. Victim had unsuccessfully appealed the decision to deny her request to proceed anonymously and seek a publication ban on the fake Facebook profile because she had not demonstrated specific harm. "A.B.’s appeal to this Court is based on what she says is the failure to properly balance the competitive risks in this case: the harm inherent in revealing her identity versus the risk of harm to the open court principle in allowing her to proceed anonymously and under a publication ban. Unless her privacy is protected, she argued, young victims of sexualized cyberbullying like her will refuse to proceed with their protective claims and will, as a result, be denied access to justice." At para 14 the Court observed "The girl’s privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying" and concluded that there is objectively discernible harm to her, and minimal harm to the open courts principle.

Fric v. Gershman, 2012 BCSC 614 Date: 2012-04-27 Master Bouck. The defendant in this motor vehicle accident seeks photographs from the plaintiff's Facebook page including date of the picture and any comments associated with the picture. Defendant also seeks photographs and any metadata associated with digital photographs. The Master decided that the photographs and the dates were relevant to the allegation that the accident had led to lost mobility and diminished capacity. However, the comments attached to the photos in Facebook were excluded because "the probative value of this information is outweighed by the competing interest of protecting the private thoughts of the plaintiff and third parties".

Wesaquate v Steven Webb, 2012 SKQB 2 Date: 2012-01-04 I.D. McLellan J. Defendant in a motor vehicle accident seeks production of all material on the plaintiff's Facebook account. The court noted that "(n)othing in the plaintiff’s examination for discovery contains answers that reveal or even suggest that her Facebook site may contain relevant material." The court dismissed the application, saying "In order for a court to order production of a document, it must have some evidence as opposed to mere speculation that a potentially relevant undisclosed document exists. In other words, the defendant is not entitled to go on a fishing expedition into the private posting of the plaintiff on her Facebook".

McDonnell and Levie, 2011 ONSC 7151 Date: 2011-12-09 Arrell J. A short survey of the case law related to production of information from Facebook. The plaintiff had testified on her discoveries that her physical activities were limited by her injuries, but stated she was unsure if her Facebook pictures would show her engaged in activities she had sworn were affected by her injuries. Access to her Facebook photographs is limited, and defendant sought an order of production of any pictures showing her engaged in any of these activities since the accident. The court dismissed the plaintiff's argument that her privacy concerns should be sufficient to prevent production.

Dosanjh v. Leblanc and St. Paul’s Hospital, 2011 BCSC 1660 Date: 2011-12-05 Master Taylor. Medical negligence case. At para 28 the court says "The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites. Rather, the defendant merely says that health, enjoyment of life and employability are in issue. Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy."

Warman v. Wilkins-Fournier, 2011 ONSC 3023 (CanLII) Date: 2011-05-30 Docket: 07-CV-39927SR. Blishen J. In this internet defamation action, the plaintiff moved for the disclosure of the e-mail addresses and personal subscriber information provided when the accounts were registered, the IP addresses used to register the accounts and the IP addresses used to post the messages. The original decision of Kershman J. was appealed and the court ordered the matter remitted to a different motions judge for reconsideration of the principles outlined in the decision. The discussion of "reasonable expectation of anonymity" starts at para 17. Discussion of public interest outweighing interests of freedom of expression and right to privacy starts at para 46.

Sparks v. Dubé, 2011 NBQB 40 (CanLII) Date: 2011-02-04 Docket: W/C/07/10 Ferguson J. This is an ex parte Motion brought by the Defendant compelling the downloading and preservation of all of the contents of the social network sites the Plaintiff is subscribed to at present. It requests that this task be performed by her personally under the court ordered direct supervision of her counsel.. Dan Michaluk's summary of the case is here. Compare with approach taken in Schuster v. Royal & Sun Alliance Insurance Company of Canadain the section on Privacy Issues.

Lougheed Imports Ltd. (West Coast Mazda) v. United Food and Commercial Workers International Union, Local 1518, 2010 CanLII 62482 (BC L.R.B.) A. Matacheskie. Date: 2010-10-22 Docket: B190/2010 ; 61304. Application regarding the termination of two employees for insubordination based on Facebook postings that the employer asserts were offensive, insulting and disrespectful comments about supervisors or managers. At para 108, the Board addresses the employer's uncertainty about what to do in a situation it had not faced before (i.e. use of social media to make derogatory comments about the employer.) Union's application was dismissed.

A.B. v. Bragg Communications Inc., 2010 NSSC 215 (CanLII) Date: 2010-06-04 Docket: Hfx. No. 329542. Arthur J. LeBlanc J. Part of this decision deals with the disclosure by the Respondent of the identity and owner of an IP address, in a case alleging creation by an unidentified perpetrator of a fake Facebook profile, which included a photograph of the applicant and other particulars which identified her. The Facebook profile also discussed the applicant's physical appearance, weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The applicant's counsel had requested and received from Facebook the IP address used when the profile was created, and has learned from the Respondent that the address is allocated to it. The Court noted that "anonymity is not an automatic shield for defamatory words", there was a prima facie case of defamation, and that there was "no public interest beyond the general right of freedom of expression ... offered in support of maintaining the author's anonymity", and ordered the disclosure. (para 22)

Warman v. Fournier et al, 2010 ONSC 2126 (CanLII) Date: 2010-05-03 Docket: 09-DV-1512 Wilton-Siegel J. Appeal from decision of Kershman J dated March 23, 2009. Appeal allowed and matter remitted to another motions judge for consideration, based on the principle of the need for a prima facie case of defamation, and Charter value of freedom of expression and the right to privacy.

Mosher v. Coast Publishing Ltd., 2010 NSSC 153 (CanLII) Date: 2010-04-14 Docket: 326977 M. Heather Robertson J. Use of Rule 14.12(1) to lead to disclosure of the names of the authors of defamatory comments published in The Coast newspaper. Google was an additional respondent, and indicated they would obey an order to produce name, account status, secondary e-mail, account services, account creation date and the Canadian I.P. data. Court provides for a second step if the names associated with the IP addresses have to be retrieved from Bell or Eastlink.

Carter v. Connors, 2009 NBQB 317 (CanLII) Date: 2009-12-02 Docket: N/C/66/07. Ferguson J. The defendant-applicant brought a motion to order the plaintiff to produce records of her Facebook usage from the time of her accident in this personal injury case. Plaintiff objects that the information is either irrelevant or an infringement of her right to privacy, or both. The courts reviews the law of relevance in discovery and reasonable expectations of privacy and concludes at para 36 that "(i)t is clear from these judgments that the success of an application to retrieve an individual's electronic computer data principally depends upon the degree of intrusion into the private lifestyle choices and electronic activity of the Internet user as well as the probative values of the information sought." The court crafts an order in para 46 that arranges for the production of the Facebook information and its protection from further disclosure by the defendants.

Kent v. Laverdiere, 2009 CanLII 16741 (ON S.C.) Date: 2009-04-14 Master Haberman. The action arises from a dog attack on the plaintiff. This is a motion by the defendant requesting all MySpace and Facebook pages for the 3 plaintiffs, four weeks before trial and more than 5 years since the incident. Original discoveries took place 4 years ago, and no request was made at that time for photos or for MySpace documents (which by this point was in use by young people). Based on the closeness of the trial, and the fact that the plaintiff does not explain how the Facebook and MySpace photos would be relevant to the matters at issue, the court dismissed the motion.

Warman v. Wilkins-Fournier, ON S.C.J. March 23, 2009. Kershman J. Motion requiring defendants to produce information identifying, or which could assist the plaintiffs in identifying, anonymous message board users on a site currently registered in Panama. Plaintiff argues for a liberal interpretation of Rule 76.03 (Simplified Procedure – Affidavit of Documents) and the duty to disclosure in Rule 30.01. Defendant relies on Irwin Toy (2002) to argue that the Plaintiff must present a prima facie case for disclosure. Court notes that in the case of Irwin Toy, the disclosure was being sought from a third party or non-party to the case, where here the information is sought from the defendant. The Defendant also relies on the FCC copyright infringement case BMG v. John Doe where the court sought to balance privacy rights against public interest. The Court observed that the recent case R. v. Wilson established that there was no reasonable expectation of privacy of one's IP address information (para 40). See Dan Michaluk's post on his privacy law blog.

Leduc v. Roman, 2009 CanLII 6838 (ON S.C.), Date: 2009-2-20 Docket: 06-CV-3054666PD3. D.M. Brown J. In this motor vehicle action the defendant, Janice Roman, appeals from the decision of Master Dash made August 14, 2008, dismissing her motion to compel production from the plaintiff, John Leduc, of all pages on his Facebook webpage (also called a Facebook profile). Although the profile was available publicly, the actual pages were only accessible by "friends". Master Dash adopted the first two steps: he ordered Mr. Leduc to preserve his Facebook postings and to deliver a supplementary affidavit of documents. However, he dismissed the defendant's motion for production of all site materials as overly broad. While I share the Master's concern about the breadth of the defendant's request, I think the court should have permitted the defendant to cross-examine on the supplementary affidavit of documents to learn what relevant content, if any, was posted on Mr. Leduc's Facebook profile. To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." (para 35)

Examination of an IT Representative

Telemax Communications Inc. v. Canquest Communications (Canada) Inc., 2006 CanLII 7033 (ON S.C.) Date: 2006-03-10 Docket: 02-CV-233323CM2. Master Dash. "[13] Telemax sold pre-paid phone cards. Canquest provided switching services to Telemax to route the pre-paid card calls and provide PINs for card users pursuant to various agreements between Canquest and Telemax. Canquest through its switch was to capture and store telephone usage in its computer database including PINS, originating and destination telephone numbers, number of seconds on each call and other time related data. Canquest generated Call Detail Records ("CDR") that was used to generate invoices. This commercial dispute centres on the validity of the invoices rendered by Canquest to Telemax for use of its switching services. Telemax claimed it did not pay the invoices because they were excessive and not supported by the data provided. Telemax has contended throughout that it never received complete and accurate billing data from Canquest to support the billings rendered." Corporate representative examined did not have the necessary technical knolwedge. Under Rule 31.03(2)(b), the Court can permit further corporate representatives to be examined in special circumstances.

Factor Gas Liquids Inc. v. Jean, 2008 CanLII 15900 (ON S.C.) Date: 2008-04-08 Docket: C-1292-06 P.B. Hambly J.[7] On May 18, 2005 Vosburg had installed on Jean's computer at Factor a program called Spector Pro 5.0. It recorded a photograph of Jean's desktop every 59 seconds. It kept these images for 90 days. [8] In the Last 90 Days That Jean Worked for Factor he was saving files to the C drive of his computer rather than to a drive dedicated for Factor employees. He was also saving files to a USB Flash Drive which was a small portable computer storage device which could be removed and taken to another computer. There was evidence that he had deleted files saved to his C drive. There was evidence that he used his personal e-mail account with Microsoft to send e-mails from Factor's computers. Vosburg concluded that Jean, while he was at Factor, stole confidential information of Factor by transferring files from Factor's computers to his home computer. He also concluded that Jean planned to use this information in setting up a competing business through Bigler and Bigler's employees and associates. [16] Gowlings, representing Factor, took steps to preserve e-mails that Jean sent from his personal e-mail account. Brian Hughson, a lawyer with Gowlings, sent Microsoft the following letter dated November 17, 2006 to the attention of Jonathan Bradley: (preserving Hotmail account). Set aside in Factor Gas Liquids Inc. v. Jean, 2008 CanLII 15900 (ON S.C.)

CIBC World Markets Inc. v. Genuity Capital Markets, 2005 CanLII 3944 (ON S.C.) Date: 2005-02-16 Docket: 05-CL-5690;05-CL-5716. J. M. Farley J. Plaintiff had sought Anton Piller relief. Defendant's counsel had given an undertaking to preserve the information that was interpreted in the context of it being the equivalent of an AP order but without any ability of the plaintiffs or their counsel having any access to review or otherwise see anything which is obtained. A forensic company (Zawaig) was retained to execute the preservation. They were "to have access for imaging and storing in a safe manner the contents of computers, Blackberries and other types of similar electronic devices of every nature and kind as to which the defendants have in their possession, power, ownership, use or control, directly and indirectly. This would include the Casey/Zwaig team having access to such devices wheresoever located, including at any office or home (but not restricted to such locations) whether or not said to be owned or used by others including spouses, children or other relatives as such would be accessed during a normal AP order execution of a home or other location. I would assume that it would not be necessary to image and store the contents of any such device said to be used by others (and not by the defendants) if on an overall review of the contents, it is obvious that the device in fact does not contain any contents of interest in these proceedings. The defendants should also certify that they have not utilized the services of some other person or some other electronic device to send or receive messages and other relevant material; similarly that they have not done anything since the January 4, 2005 hearing to delete anything." In regard to the process, "The defendants are to provide a schedule forthwith (I trust within a day or two) of a listing of all subject electronic devices including make, model, serial number if applicable and location in a form acceptable to the Casey/Zwaig team after consultation." Regarding third party sources, "Counsel will jointly send a letter to all independent (sic) server providers (ISP) over and above those already contacted, which have acknowledged they will preserve any relevant material in their respective servers."

Portus Alternative Asset Management Inc. et al, Re, 2005 28 O.S.C.B. 2670, 2005-03-04, Docket: Court File No. 05-CL-5792. C. L. Campbell J. The Ontario Securities Commission applied to have KPMG appointed as a receiver for all assets, undertakings and properties of Portus Asset Management. The court approved the appointment and ordered the respondent to cooperate with the Receiver and permit the Receiver to make, retain and take away copies of and grant to the Receiver access to and use of accounting, computer, software and physical facilities. The court also ordered that Internet Service Providers and other Persons which provide e-mail, world wide web, file transfer protocol, Internet connection or other similar services shall deliver to the Receiver all documents, server files, archive files and any other information in any form in any way recording messages, e-mail correspondence or other information sent or received by such directors, officers, employees or agents in the course of their association with the Debtors.

Authenticity and Admissibility

Authentication of electronic documents. Section 31.1 of the Canada Evidence Act. Section 31.2 deals with "the best evidence rule in respect of an electronic documents" and 31.3 with the "presumption of integrity".

R. v. Sitaram, 2011 ONCJ 12 (CanLII) Date: 2011-01-19 Nakatsuru J. Hearing into the alleged breach of a house arrest provision of a conditional sentence, supervised using an electronic monitoring device. The defence suggested that a false alert was generated by the electronic monitoring system. At para 73, the court observes "(w)hile it has been widely and long used, nothing created by human hands is infallible. No system is free from error. However, the issue is not whether electronic monitoring is perfect. Rather, as I see it, the issue is whether this electric monitoring system of Serco Geografix Ltd. is sufficiently reliable and accurate for a court to attribute significant weight to the inference that an offender is no longer within the geographical confines required by his curfew or house arrest order when an absence alert is generated." After receiving evidence from the system supplier in addition to other analysis, he concludes on balance of probabilities that the signal of an breach was valid. Most of the decision deals with what the court considered in concluding that the electronic evidence was reliable in this particular instance.

Labrador Community Development Corporation v. Goose Bay Lumber Ltd. et al, 2005 NLTD 151. Date: 2005-09-09 Docket: 200308T0072 . Robert A. Fowler J. This is a motion for non-suit based on the inadmissibility or rejection of the documentary evidence of the Plaintiff. The court reviews the necessary admissibility framework for business records starting at para32. Questions arose around computer documents that had been printed from the financial records. At para46, the court says "With the exception of the updated documents Ms. Noseworthy had no idea as to how the documents at Tabs 1 to 4 inclusive were printed and by whom. There was also absolutely no evidence of the system used by LCDC as to how information was received and recorded and by whom these functions were performed to give some degree of reliability." The records were thus ruled inadmissible.

Animal Welfare International Inc. v. W3 International Media Ltd., 2011 BCSC 299 (CanLII) Date: 2011-03-11 Docket: S093691. Armstrong J. An offshore supplier of animal supplies sues the Canadian-based website provider responsible for the internet-based marketing and sales for failure to account for profits and continuing to use the plaintiff's customer list after termination of the profit-sharing agreement. Plaintiff seeks unaltered copy in machine readable format of the customer databases on the two websites involved. Defendant claims that private customer information including customer name, address and credit card information must be redacted, especially since plaintiff is outside of Canada and may not abide by the implied undertaking. Plaintiff claims these lists are their property. See paras 14-24. Court orders two directors of the plaintiff company to sign confidentiality agreements protecting the private information and orders release of the databases once the confidentiality agreements are signed.

Frangione v. Vandongen et al., 2010 ONSC 2823 (CanLII) Date: 2010-05-18 Docket: 04-CV-2573CM Master Lou Ann M. Pope. The defendant in this motor vehicle personal injury case seeks a forensic examination of the plaintiff's computer to determine how much time he actually does spend on the computer, as well as all postings to his Facebook account, including those only accessible to his "friends". The Master surveys the case law dealing with access to the hard drive at para 46. The privacy issues in this case are discussed starting at para 57.

Schuster v. Royal & Sun Alliance Insurance Company of Canada, 2009 CanLII 58971 (ON S.C.) Date: 2009-10-29 Price J. Plaintiff is suing her insurer for compensation related to injuries resulting from an automobile accident. Defendant seeks an ex parte preservation order and production of plaintiff's Facebook account, although it does not provide evidence that the Facebook profile contains relevant information, nor asked the plaintiff any questions about the Facebook profile during examinations for discovery. Moreover, the court could find no reason to conclude that the plaintiff would delete photographs from her Facebook account. Finally, the court asserted the Facebook users' privacy interests in their profiles and the role of PIPEDA in protecting that interest. The court did give the defendant leave to cross-examine the plaintiff on her affidavit of documents to ensure she has complied with her obligation to list and produce all relevant documents, including those on Facebook, if relevant.

Wice v. Dominion of Canada General Insurance Company, 2009 CanLII 36310 (ON S.C.) Date: 2009-07-06 C. Boswell J. Plaintiff suffered traumatic brain injury in a motor vehicle accident and sues his insurer. Defendant seeks preservation and production of information from Facebook. The defendant produced evidence demonstrating that there are relevant photographs of the Plaintiff participating in social activities posted on his Facebook profile. Court ordered plaintiff to provide a further and better Affidavit of Documents, and to preserve any and all documentation on Facebook.

State Farm v. Privacy Commissioner and AG of Can., 2008 NBQB 33 (CanLII) Date: 2008-01-28 Docket: F/M/39/07. Judy Clendening J.C.Q.B. "The Applicant seeks a declaratory order that the Privacy Commissioner has no authority to investigate a complaint of an individual against State Farm. This individual, Gerald Gaudet, commenced an action against Jennifer Vetter, who is insured by State Farm. The insurer has been investigating this claim, and it appears that Gerald Gaudet is not happy about surveillance of his activities by State Farm. The Privacy Commissioner has decided to investigate and demands that State Farm send to them the material they have collected on surveillance for a review by the Privacy Commissioner." (para 6) Court decided that Federal Court is more appropriate jurisdiction.

Bellaire v. Daya, 2007 CanLII 53236 (ON S.C.) Date: 2007-12-07 Joy J. Class action. Invasive surgery for infertility. New standard of care. Hearing was for certification of a class action. "Counsel for the OPGT has requested that she be provided with a list of the identified Class members so that the OPGT can cross-check it against its register of guardians for mentally incompetent persons. The Hospital does not oppose, provided that the list is provided in a manner that is minimally invasive of Class member's privacy interests. To that end, the Hospital shall, as soon as reasonably possible, prepare and provide to Ms. Redden, counsel for the OPGT , a list setting out the names, dates of birth and last known addresses of the Class members. The list shall not include any medical information and shall not be titled in a manner that links the list to this action or to any doctor or medical condition. It shall be delivered on a password protected CD or "memory stick". It shall not be "saved" and no copies, electronic or otherwise, shall otherwise be made of the document. Ms. Redden shall designate a single individual to undertake the data base search under her supervision. The CD or "memory stick" shall be returned to the Hospital within 10 days. The Hospital shall coordinate with Ms. Redden the date on which the list is to be provided. The OPGT shall promptly provide Class counsel with the outcome of its search." [para 73]

Somwar v. McDonald's Restaurants of Canada Ltd., 2006 CanLII 202 (ON S.C.) Date: 2006-01-10 Docket: 05-CV-283913-SR. Stinson J. "With advancements in technology, personal data of an individual can now be collected, accessed (properly and improperly), and disseminated more easily than ever before. There is a resulting increased concern in our society about the risk of unauthorized access to an individual's personal information. The traditional torts such as nuisance, trespass, and harassment may not provide adequate protection against infringement of an individual's privacy interests. Protection of those privacy interests by providing a common law remedy for their violation would be consistent with Charter values and an "incremental revision" and logical extension of the existing jurisprudence." (para 29)

Shred-Tech Corp. v. Viveen, 2006 CanLII 41004 (ON S.C.) Date: 2006-12-05 Docket: C346-05. D.J. Gordon J. The defendants are former employees and suppliers of the plaintiff. The plaintiff retained an investigative agency to examine the activities of the defendants in establishing a competing business. During discovery, the defendants received the investigative report and became aware that the investigator had obtained the defendants' Bell Canada telephone records without their consent or court order and that the investigator had made audio and video recordings secretly and without permission. In a counterclaim, the defendants allege invasion of privacy, trespass and breach of confidentiality.

York University v. Bell Canada Enterprises, 2009 CanLII 46447 (ON S.C.) 2009-9-9 G.R. Strathy J. York U. applied for a Norwich order to obtain the identity of the the author(s) of an allegedly defamatory and widely distributed e-mail.York had already successfully applied for the IP address related to the Google email account used in the communication.The court used the factors determined by the Ontario CA review of Norwich orders (GEA Group AG v. Flex-N-Gate Corporation, 2009 ONCA 619) to assess whether the order should be granted.

Centura Building Systems Ltd. v. Blackcomb Mountain Development Ltd. , 2007 BCSC 939 (CanLII) Date: 2007-06-29 Docket: L042758 Nathan Smith J. The plaintiff, Centura Buildings Systems Ltd., ("Centura") applies for the production of documents from Four Seasons Hotels Ltd., ("Four Seasons") which is not a party to this action. Four Seasons opposes the application, saying that the proposed order would require an expensive and time-consuming review of thousands of documents. In B.C. "Rule 26(11) allows the court to order production of "a document" in the possession or control of a person who is not a party." Discussion of scope of production required of a non-party, with degree to which the Peruvian Guano test can be applied. "Because Peruvian Guano was decided in 1882, it can be assumed that most of the documents were handwritten. The typewriter was still in the category of new, emerging technology. In setting out a very broad test of relevance, the court could not have anticipated it being applied to the huge volume of documents created, reproduced, transmitted and stored by 21st Century communications technology. Even Dufault v. Stevens, decided in 1978, predates much of the technology now in common use, such as e-mail and the internet." (para 12). "In the circumstances of this case, the plaintiff's argument that it must have full disclosure of all documents from both Blackcomb and Four Seasons to ensure that no documents are missing is a far too tenuous and speculative basis for requiring a non-party to engage in the kind of onerous search that the plaintiff is seeking." (para 26)

CIBC World Markets v. Genuity Capital Markets, 2006 CanLII 11909 (ON S.C.) Date: 2006-04-07 Docket: 05-CL-5716. J.M. Farley J. "Yahoo! Canada Inc. is hereby ordered to preserve and produce to Brian Casey of Baker & McKenzie for preservation and indexing any and all information, e-mails or other data of any kind in its power, possession or control relating to Marie Cordero, directly or indirectly, particularly relating to an e-mail account named: mecordero2005@yahoo.ca. "

R. v. Vu, 2011 BCCA 536 Date: 2011-12-28 Frankel, Levine and Low JJ.A. Crown appealed acquittal of charges of marijuana possession, trafficking and theft of electricity (grow op). Issue concerns whether an information to obtain (“ITO”) that supported the issuance of a warrant to search a residence for evidence of criminal activity was sufficient to support the granting of additional authority to search for “documentation” that could assist in determining who was in control of the premises. It also raises the issue of whether a warrant to search for “documentation” permits the police to conduct an on-site examination of computers and cellular telephones for electronically-stored information. The ITO stated it was the "intention to seize all equipment and parts utilized to divert electricity, including the meter bases, the electrical meters, new and used BC Hydro meter seals, typed, written or computer generated notes relative to the theft of hydro electricity and records and documentation relating to occupancy and control over the property and electrical services supplied." At para 68 the Court observes "(w)hen the police, in the course of executing a warrant, locate a device that can reasonably be expected to contain an electronically-stored version of a thing they have been authorized to search for, they can examine that device for the purpose of determining whether it contains that thing (i.e., information), but only to the extent necessary to make that determination." The appeal was allowed and the acquittals set aside.

Design Group Staffing Inc. v. Fierlbeck, 2008 ABQB 35 (CanLII) Date: 2008-01-15 Docket: 0603 02889 ; 0601 05676 Frans F. Slatter JCQBA. Application to set aside an Anton Piller order. Defendant was working as an IT consultant developing applications for the Alberta Treasury Branches and was dismissed after a dispute. Before leaving, he sent himself 300 emails embedded in 5 separate emails from his ATB account to his home account on the Telus network. He then deleted that information from his laptop and emptied the "trash". Concerned about possible "identity theft" if the emails contained personal information about ATB customers, ATB alerted the plaintiff who in turn applied for the AP order and a Norwich order to freeze the Telus account. The court rejected the argument by the defendant that it was not a true AP order, not being intended for preservation but rather for the protection of identity theft information. However, subsequent analysis of the emails seized revealed that there was no customer information in the emails sent, and ATB could have discovered the contents from the copies still in their servers. Although the plaintiff applied for the AP in good faith, they should have determined whether ATB could learn what the emails contained, noting the 10 day period between when the emails were sent and when plaintiff applied for the order. Court determined there was material non-disclosure and set aside the two orders. (Questions from P.D.: How long is reasonable to recover the email, review the content, determine through sampling that there was sensitive info, determine the appropriate legal course of action and put together the application?)

Brunswick News Inc. v. Langdon, 2007 NBQB 423 (CanLII) Date: 2007-10-03 Docket: S/C/549/07 Peter S. Glennie J. Reasons for granting an application for an injunction against the use of proprietary and confidential information and an Anton Piller order. Nice review of the law up to October 2007 on Anton Piller orders.

Bell Expressvu Limited Partnership v. Rodgers (Tomico Industries), 2007 CanLII 50595 (ON S.C.) 2007-11-21 Docket: 06-CL-6574 Pepall J. Unsuccessful motion to set aside an Anton Piller order. Defendant raised ten bases, each of which were rejected. Note that defendant had initially refused entry, but agreed later in the day after being served with a contempt motion. Two of the computers that had been subject to the search were found not to contain any hard drives.

Solara Technologies Inc. v. Beard, 2007 BCCA 402 (CanLII) 2007-07-31 Docket: CA033051 Reasons written by Madam Justice Levine. Appeal from an order restraining the appellant plaintiff from using an email retrieved from the contents of the respondent's computer hard drive. The contents had originally been seized pursuant to an Anton Piller order in May 2004, which the defendant moved to have set aside in April 2005. The Court acknowledged there were irregularities in granting and conducting the Anton Piller, but refused to grant the order because of the 12 month lapse of time while restraining the plaintiff from using the email. The email is extremely relevant and a discoverable document. The Appeal Court gave leave to hear the appeal of the order and set aside the paragraph in the order restraining the use of the email.

John Stagliano Inc. v. Elmaleh, 2006 FC 585 (CanLII) Date: 2006-05-12 Docket: T-1779-05. J. Gauthier J. "The plaintiffs now ask the Court to review the matter and to confirm that the Anton Piller Order was properly granted and that it was executed in accordance with its terms against the defendants Alain Elmaleh (Elmaleh), 144942 Canada Inc. (cob Kaytel Video Distribution) (Kaytel) and Leisure Time Canada Inc. (Leisure Time). They also seek permission to use the evidence produced by or obtained from those defendants in these proceedings as evidence in two pending actions in the United States District Court for the Central District of California, provided such use is permitted by the law of that forum." Plaintiffs sought relief from the implied undertaking rule. The court dismissed the motion with costs, and ordered that the material seized under the Anton Piller order be returned, with the exception of evidence filed with the court that would be sealed, subject to a Confidentiality Order.

CIBC World Markets v. Genuity Capital Markets, 2006 CanLII 11908 (ON S.C.) Date: 2006-04-06 Docket: 05-CL-5716. J.M. Farley J. "If there are aspects of that index (which would be a public document in a report – upon an equivalent AP [Anton Pillar] (SIC) order execution which this process is to mirror) which contain truly irrelevant material to the dispute – and which the defendants for personal reasons would prefer not to be on the public record, then a motion could be brought to have the full index sealed and an expurgated one provided for the public record which contains information which is clearly not irrelevant. In that regard reference may be had to Knight v. KPMG LLP, (1999), 20 C.B.R. (4th) 258. If the parties were able to agree as to irrelevant aspects, this may well be of significance to the hearing judge. "

Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45 (CanLII) Date: 2004-06-30 Docket: 29286 Binnie J for the majority opinion. "The practice of creating "caches" of data speeds up the transmission and lowers the cost. The subsequent end user may have no idea that it is not getting the information directly from the original Web site. Cache copies are not retained for long periods of time since, if the original files change, users will get out-of-date information." (para 23)

Ministry of Water, Land & Air Protection, Re, 2002 CanLII 42480 (BC I.P.C.) Date: 2002-09-12 Docket: 02-46 David Loukidelis, Information and Privacy Commissioner. "This is called "caching"; each computer stores and preserves images locally that may be wanted again. Using the readily accessible local copy prevents reloading the image from a remote (and slow) source. Unix and Windows operating systems routinely cache images, as do individual web browsers. In particular, Netscape Navigator and Microsoft Internet Explorer make use of caches in RAM memory and on hard disk. These images are stored with particular names and time/date stamps, and they can be retrieved, copied and printed. The user will not necessarily be aware that these images are being stored, but it happens nonetheless." (para 12) As noted in the SCC decision, though, cache copies are not retained unless the users explicitly store them so they are available "off-line".

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